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Justice Powell | concurring | true | Reid v. Georgia | 1980-06-30T00:00:00 | null | https://www.courtlistener.com/opinion/110336/reid-v-georgia/ | https://www.courtlistener.com/api/rest/v3/clusters/110336/ | 1,980 | 1979-151 | 2 | 8 | 1 | [1]
This case is similar in many respects to United States v. Mendenhall, 446 U.S. 544 (1980), in which a defendant observed walking through an airport was stopped by DEA agents and asked for identification. The threshold question in Mendenhall, as here, was whether the agent's initial stop of the suspect constituted a seizure within the meaning of the Fourth Amendment. MR. JUSTICE STEWART, joined by MR. JUSTICE REHNQUIST, was of the opinion that the mere stopping of a person for identification purposes is not a seizure:
"We conclude that a person has been `seized' within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Id., at 554.[2]
*443 Thus, on the basis of facts remarkably similar to those in the present case, MR. JUSTICE STEWART and MR. JUSTICE REHNQUIST decided that no seizure had occurred.
My concurring opinion in Mendenhall, in which THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN joined, did not consider the seizure issue because it had not been raised in the courts below. Even if the stop constituted a seizure, it was my view that the DEA agents had articulable and reasonable grounds for believing that the individual was engaged in criminal activity. Therefore, they did not violate the Fourth Amendment by stopping that person for routine questioning. I expressly stated, however, that my decision not to reach the seizure issue did not necessarily indicate disagreement with the views of MR. JUSTICE STEWART and MR. JUSTICE REHNQUIST. Id., at 560, n. 1.[3]
The state courts, which decided this case before our decision in Mendenhall, did not consider whether the petitioner had been seized. Rather, those courts apparently assumed that the stop for routine identification questioning constituted a seizure, and addressed only the question whether the agent's actions were justified by articulable and reasonable grounds of suspicion. Because we similarly do not consider the initial seizure question in our decision today, that issue remains open for consideration by the state courts in light of the opinions in Mendenhall.
| [1] This case is similar in many respects to United in which a defendant observed walking through an airport was stopped by DEA agents and asked for identification. The threshold question in Mendenhall, as here, was whether the agent's initial stop of the suspect constituted a seizure within the meaning of the Fourth Amendment. MR. JUSTICE STEWART, joined by MR. JUSTICE REHNQUIST, was of the opinion that the mere stopping of a person for identification purposes is not a seizure: "We conclude that a person has been `seized' within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave."[2] *443 Thus, on the basis of facts remarkably similar to those in the present case, MR. JUSTICE STEWART and MR. JUSTICE REHNQUIST decided that no seizure had occurred. My concurring opinion in Mendenhall, in which THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN joined, did not consider the seizure issue because it had not been raised in the courts below. Even if the stop constituted a seizure, it was my view that the DEA agents had articulable and reasonable grounds for believing that the individual was engaged in criminal activity. Therefore, they did not violate the Fourth Amendment by stopping that person for routine questioning. I expressly stated, however, that my decision not to reach the seizure issue did not necessarily indicate disagreement with the views of MR. JUSTICE STEWART and MR. JUSTICE REHNQUIST.[3] The state courts, which decided this case before our decision in Mendenhall, did not consider whether the petitioner had been seized. Rather, those courts apparently assumed that the stop for routine identification questioning constituted a seizure, and addressed only the question whether the agent's actions were justified by articulable and reasonable grounds of suspicion. Because we similarly do not consider the initial seizure question in our decision today, that issue remains open for consideration by the state courts in light of the opinions in Mendenhall. |
Justice Kennedy | majority | false | Smith v. Texas | 2007-04-25T00:00:00 | null | https://www.courtlistener.com/opinion/145740/smith-v-texas/ | https://www.courtlistener.com/api/rest/v3/clusters/145740/ | 2,007 | 2006-035 | 2 | 5 | 4 | The jury in a Texas state court convicted petitioner LaRoyce Lathair Smith of first-degree murder and determined he should receive a death sentence. This Court now reviews a challenge to the sentencing proceeding for a second time.
The sentencing took place in the interim between our decisions in Penry v. Lynaugh, 492 U.S. 302, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989) (Penry I), and Penry v. Johnson, 532 U.S. 782, 121 S. Ct. 1910, 150 L. Ed. 2d 9 (2001) (Penry II). In Penry I the Court addressed the special-issue questions then submitted to Texas juries to guide their sentencing determinations in capital cases. The decision held that the Texas special issues were insufficient to allow proper consideration of some forms of mitigating evidence. Following a pretrial challenge to the special issues by Smith, the trial court issued a charge instructing the jury to nullify the special issues if the mitigating evidence, taken as *1690 a whole, convinced the jury Smith did not deserve the death penalty. After Smith's trial, Penry II held a similar nullification charge insufficient to cure the flawed special issues. Smith, on state collateral review, continued to seek relief based on the inadequacy of the special issues, arguing that the nullification charge had not remedied the problem identified in his pretrial objection. The Texas Court of Criminal Appeals affirmed the denial of relief, distinguishing Smith's case from the Penry precedents. Ex parte Smith, 132 S.W.3d 407 (2004).
This Court, by summary disposition, reversed. Smith v. Texas, 543 U.S. 37, 125 S. Ct. 400, 160 L. Ed. 2d 303 (2004) (per curiam) (Smith I). On remand the Court of Criminal Appeals again denied Smith relief. It held, for the first time, that Smith's pretrial objections did not preserve the claim of constitutional error he asserts. Under the Texas framework for determining whether an instructional error merits reversal, the state court explained, this procedural default required Smith to show egregious harm a burden the court held he did not meet. Ex parte Smith, 185 S.W.3d 455, 467-473 (Tex.Crim.App.2006). The requirement that Smith show egregious harm was predicated, we hold, on a misunderstanding of the federal right Smith asserts; and we therefore reverse.
I
A
The Special Issues
Under Texas law the jury verdict form provides special-issue questions to guide the jury in determining whether the death penalty should be imposed. At the time of Smith's trial, Texas law set forth three special issues. The first addressed deliberateness; the second concerned future dangerousness; and the third asked whether the killing was an unreasonable response to provocation by the victim. Provocation was not applicable to Smith's case so the third question was not included in the instructions. If the jury answered the two applicable special-issue questions in the affirmative, the death penalty would be imposed.
In Penry I, the Court held that neither of these special-issue instructions was "broad enough to provide a vehicle for the jury to give mitigating effect" to the evidence at issue in that case. Penry II, supra, at 798, 121 S. Ct. 1910 (citing, and characterizing, Penry I, supra, at 322-325, 109 S. Ct. 2934). We refer to the inadequacy of the special issue instructions as "Penry error."
For the brief period between Penry I and the Texas Legislature's addition of a catchall special issue, Texas courts attempted to cure Penry error with a nullification charge. In Smith's case the trial court instructed that if a juror was convinced the correct answer to each special-issue question was "yes," but nevertheless concluded the defendant did not deserve death in light of all the mitigating evidence, the juror must answer one special-issue question "no." The charge was not incorporated into the verdict form. See, e.g., 1 Ohio App. 123-124. In essence the jury was instructed to misrepresent its answer to one of the two special issues when necessary to take account of the mitigating evidence.
In Penry II, the Court concluded that a nullification charge created an ethical and logical dilemma that prevented jurors from giving effect to the mitigating evidence when the evidence was outside the scope of the special issues. As the Court explained, "because the supplemental [nullification] instruction had no practical effect, the jury instructions ... were not meaningfully different from the ones we found *1691 constitutionally inadequate in Penry I." 532 U.S., at 798, 121 S. Ct. 1910. In other words, Penry II held that the nullification charge did not cure the Penry error.
Penry II and Smith I recognized the ethical dilemma, the confusion, and the capriciousness introduced into jury deliberations by directing the jury to distort the meaning of an instruction and a verdict form. Penry II, supra, at 797-802, 121 S. Ct. 1910; Smith I, supra, at 45-48, 125 S. Ct. 400. These are problems distinct from Penry error and may be grounds for reversal as an independent matter; but we need not reach that issue here, just as the Court did not need to reach it in Penry II or Smith I.
When this Court reversed the Court of Criminal Appeals in Smith I, it did so because the nullification charge had not cured the underlying Penry error. See Smith I, 543 U.S., at 48, 125 S. Ct. 400 (holding that "the burden of proof ... was tied by law to findings of deliberateness and future dangerousness that had little, if anything, to do with" the mitigating evidence). While the ethical and logical quandary caused by the jury nullification charge may give rise to distinct error, this was not the basis for reversal in Smith I. On remand the Court of Criminal Appeals misunderstood this point. Its interpretation of federal law was incorrect.
In light of our decision in Smith I, our review of the facts need not restate the brutality of the murder Smith committed or the evidence he offered in mitigation. See id., at 38-43, 125 S. Ct. 400. We need only address the conclusion of the Court of Criminal Appeals that the constitutional error asserted by Smith was caused by the nullification charge and that, having failed to alert the trial court to that error, Smith was required to demonstrate egregious harm to obtain relief.
B
The Trial
Before voir dire, Smith filed three written motions addressing the jury instructions. In the first, he argued that Jurek v. Texas, 428 U.S. 262, 96 S. Ct. 2950, 49 L. Ed. 2d 929 (1976), and Penry I established the constitutional inadequacy of the special issues. The motion maintained that Texas law denied the trial court power to cure the problem because "[t]he exclusive methodology for submission to the jury of special issues with regard to infliction of the death penalty [is] contained in" Article 37.071 of the Texas Code of Criminal Procedure Annotated (Vernon 2006 Supp. Pamphlet), which did not authorize the trial court to add an additional special issue on mitigation. 1 Ohio App. 9. The trial court, the objection stated, would not be able to provide "any instruction with regard to mitigating evidence which would permit the jury to make a moral reasoned response to" mitigating evidence not covered by the special issues. Ibid. Smith would offer such evidence.
The second pretrial motion raised a related but distinct argument. Smith began by noting that in Jurek the Supreme Court had found Article 37.071 constitutional on its face. He argued, however, it did so with the understanding that the Texas courts would give broad construction to terms in the special issues such as "`deliberately.'" 1 Ohio App. 12. They had not done so and therefore "[t]here [was] no provision in Texas for the jury to decide the appropriateness of the death penalty taking into consideration the personal moral culpability of the [d]efendant balanced by mitigating evidence which is not directly or circumstantially probative in answering the special issues." Id., at 13. Smith therefore reasoned that Article 37.071 was unconstitutional.
*1692 The third pretrial motion asked the court to state the contents of the mitigation charge prior to voir dire so Smith could exercise his jury challenges intelligently. Id., at 17-19.
The trial court denied the first two motions. Id., at 21. In response to the third it provided Smith a copy of its proposed mitigation charge. That charge, which we will refer to as "the nullification charge," defined mitigating evidence broadly before explaining to the jury, in relevant part:
"[I]f you believe that the State has proved beyond a reasonable doubt that the answers to the Special Issues are `Yes,' and you also believe from the mitigating evidence, if any, that the Defendant should not be sentenced to death, then you shall answer at least one of the Special Issues `No' in order to give effect to your belief that the death penalty should not be imposed due to the mitigating evidence presented to you. In this regard, you are further instructed that the State of Texas must prove beyond a reasonable doubt that the death sentence should be imposed despite the mitigating evidence, if any, admitted before you." Smith I, supra, at 40, 125 S. Ct. 400 (internal quotation marks and citation omitted).
The nullification charge did not define or describe the special issues. 1 App. 105-110. The judge told counsel: "If you see something in that charge that you'd like worded differently or you think could be made clearer or better, I'm always willing to entertain different wording or different ways of putting the idea. So if you come up with something you like better, just let me know and I'll look at it." Id., at 21. Smith raised no additional objection and did not suggest alternative wording for the nullification charge.
The jury received the nullification charge from the judge, but the verdict form did not incorporate it. The form was confined to the special issues of deliberateness and future dangerousness. Id., at 123-124. The jury unanimously answered "yes" to both special-issue questions, and Smith was sentenced to death.
C
Post-Trial Proceedings
The State does not contest the validity of Smith's challenge to the special issues in his pretrial motion. It does contend that since Smith did not object to the nullification charge, his state habeas petition rests on an unpreserved claim, namely that the nullification charge excluded his mitigating evidence. The State's formulation of the federal right claimed by Smith, a formulation accepted by the Court of Criminal Appeals, is based on an incorrect reading of federal law and this Court's precedents. Considering Smith's first two pretrial motions together, as the trial court did, it is evident Smith's objection was that the special-issue framework violated the Eighth Amendment because it prevented the court from formulating jury instructions that would ensure adequate consideration of his mitigating evidence. This framework failed because the special issues were too narrow, the trial court was unable to promulgate a new catchall special issue, and the Texas courts did not define "deliberately" in broad terms. The State is correct that this was an objection based on Penry error, not one based on the confusion caused by the nullification instruction.
A review of Smith's post-trial proceedings shows that the central argument of his habeas petition, and the basis for this Court's decision in Smith I, is the same constitutional error asserted at trial.
1
Direct Appeal
On direct appeal from the trial court, Smith renewed his argument that the special issues were unconstitutional:
*1693 "[I]n [Penry I], the Supreme Court held that there was an Eighth Ame[n]dment violation where there was mitigating evidence not relevant to the special verdict questions, or that had relevance to the defendant's moral culpability beyond the scope of the special verdict questions, and the jury instructions would have provided the jury with no vehicle for expressing its reasoned moral response to that evidence.
.....
"By its extremely narrow interpretation of the requirements of Penry, this Court has unconstitutionally narrowed the sentencer's discretion to consider relevant mitigating evidence .... The special issues ... do not in reality provide a vehicle for individualized consideration of the appropriateness of assessment of the death penalty and [the article establishing them] is unconstitutional as applied." 1 Ohio App. 133-134.
Both the Court of Criminal Appeals, in its most recent opinion, and the State, in its brief on direct appeal, recognized Smith's pretrial motions preserved this argument. 185 S.W.3d, at 462, and n. 9 (holding Smith's direct-appeal argument that "the jury was unable to give effect to his mitigating evidence in answering the special issues" was "based upon his pretrial motion"); Brief for Texas in No. 71,333 (Tex. Crim.App.), p. 62, Record 674 ("[Smith] reiterates his [pretrial] claim that the statute is unconstitutional as applied since it fails to provide an effective vehicle for the jury to apply mitigating evidence").
In its opinion affirming the sentence on direct review the Court of Criminal Appeals held that the "instruction complied with Penry and provided a sufficient vehicle for the jury to consider any mitigating evidence [Smith] offered." Smith v. State, No. 71,333 (Tex.Crim.App., June 22, 1994), p. 11, 1 Ohio App. 147.
2
First and Second State Habeas
In 1998, Smith sought state habeas relief. Under state law the petition was untimely. The Court of Criminal Appeals, over a dissent, rejected an argument that neglect by Smith's counsel merited equitable tolling. Ex parte Smith, 977 S.W.2d 610 (Tex.Crim.App.1998) (en banc); see id., at 614 (Overstreet, J., dissenting). Texas then amended its filing rules to allow the exception the Court of Criminal Appeals had declined to create. The statutory change permitted Smith to file for habeas relief.
Smith filed his second habeas petition before this Court's decision in Penry II. He argued once more that the special issues were inadequate: "In Penry [I], the Supreme Court ... held that the former Texas capital sentencing statute did not provide an adequate vehicle for expressing its reasoned moral response to [mitigating] evidence in rendering its sentencing decision." Application for Writ of Habeas Corpus Pursuant to Section 4A of Article 11.071 of the Texas Code of Criminal Procedure in No. W91-22803-R(A) (Tex.Crim. App.), p. 191, Record 193 (internal quotation marks omitted). Smith acknowledged the trial court tried to solve the problem with the nullification charge, but he explained that "[i]t confounds common sense to suggest jurors who are sworn to tell the truth would ever understand that they were authorized to answer [special-issue] questions falsely." Id., at 193, Record 195. Smith continued:
"Nothing in the special issues themselves linked the `nullification' instruction to the specific questions asked; nothing in the special issues themselves authorized the jury to consider mitigating evidence when answering the questions; *1694 nothing in the special issues themselves authorized the jury to answer the questions `no' when the truthful answer was `yes'; in short, nothing in the special issues permitted the jury to apply the `nullification' instruction." Id., at 194, Record 196.
Smith conceded he had not objected to the nullification charge but confirmed that he had challenged the special-issues statute and that the Court of Criminal Appeals had reached the merits of this claim on direct review.
The State, relying upon a procedural bar different from and indeed contradictory to the one it now raises, responded that "[t]his claim [was] procedurally barred as it was both raised and decided on the merits on direct appeal." 1 Ohio App. 156; see also id., at 157 (describing Smith's position as an "identical complaint" and an "identical argument" to his claim on direct appeal). The State contended, in the alternative, that Smith's position was meritless because the nullification charge cured any problem with the special issues. Respondent's Original Answer and Response to Applicant's Application for Writ of Habeas Corpus in No. W91-22803-R(A) (Tex. Crim.App.), pp. 136-139, Record 467-470.
The state trial court denied habeas relief on the ground Smith was procedurally barred from raising the same claim denied on direct review absent "a subsequent change in the law so as to render the judgment void ...." Ex parte Smith, No. W91-22803-R, 86-87 (265th Dist. Ct. of Dallas Cty., Texas, Apr. 5, 2001).
3
Appeal from the Denial of State Habeas Relief
While Smith's appeal from the state trial court's denial of his second habeas petition was pending, this Court decided Penry II. Smith filed a brief in the Court of Criminal Appeals explaining the relevance of Penry II to his habeas claim. He noted that the special-issue questions in his case were for all relevant purposes the same as those in Penry II. Applicant's Brief for Submission in View of the United States Supreme Court's Opinion in Penry v. Johnson in No. W91-22803-R (Tex.Crim.App.), pp. 4-5. He maintained the nullification charges were also indistinguishable, id., at 5-6, and had in Penry II been held insufficient "to cure the error created by the Special Issues." Applicant's Brief for Submission, at 6-7. Smith concluded by explaining that the procedural bar for raising an issue already resolved on direct review did not apply "where an intervening legal decision renders a previously rejected claim meritorious." Id., at 12 (citing Ex parte Drake, 883 S.W.2d 213, 215 (Tex.Crim.App.1994) (en banc)). (We note the Court of Criminal Appeals recently adopted this position. See Ex parte Hood, 211 S.W.3d 767, 775-778 (Tex.Crim.App.2007).)
The Court of Criminal Appeals ordered supplemental briefing on the relevance of Penry II. Given that Penry II addressed the sufficiency of a nullification charge as a cure for inadequate special issues, Smith's supplemental brief concentrated on the same issue. Nevertheless, his central argument remained that he "presented significant mitigating evidence that was virtually indistinguishable from Penry's and thus undeniably beyond the scope of the special issues." Applicant's Supplemental Briefing on Submission in No. 74,228 (Tex. Crim.App.), p. 12 (hereinafter Applicant's Supp. Briefing). The nullification charge was inadequate as well, in his view, because, based on the ethical dilemma, "there is a reasonable probability that the nullification instruction ... precluded [a juror who found that Smith's personal culpability did not warrant a death sentence] *1695 from expressing that conclusion." Id., at 13. Alternatively, Smith argued he was "also entitled to relief under Penry II" because "[e]ven if the jury might have been able to give effect to some of [his] mitigating evidence within the scope of [the] special issues, the confusing nullification instruction itself" may have prevented the jury from doing so. Id., at 14. As such, the nullification charge was "worse than no instruction at all." Id., at 15-16 (emphasis deleted).
The State responded that the special issues were adequate and, furthermore, that the nullification charge, unlike the charge in Penry II, cured any problem. State's Brief in No. 74,228 (Tex.Crim. App.), pp. 2-11. In response to Smith's second argument the State contended "it tests the bounds of reason to grant [Smith] relief based on a good-faith attempt to give him a supplemental instruction to which he was not constitutionally entitled." Id., at 11. In reply Smith reiterated his two distinct arguments, devoting most of the brief to his original trial objection. Applicant's Reply to Respondent's Response to Applicant's Brief for Submission in No. 74,228 (Tex.Crim.App.).
The Court of Criminal Appeals denied the habeas petition. It found no Penry error, reasoning that the special issues were adequate to consider the mitigating evidence. Ex parte Smith, 132 S.W.3d, at 412-415. Any evidence excluded from the purview of the jury, the court indicated, was not "constitutionally significant." Id., at 413, n. 21. In the alternative the court held the nullification charge and the argument at trial were distinguishable from those at issue in Penry II. In Smith's case, the court reasoned, the nullification charge would have been an adequate cure even if the special issues were too narrow. 132 S.W.3d, at 416-417.
The majority did not adopt or address the reasoning of the two concurring opinions, which argued that Smith had procedurally defaulted his "Penry II claim" because while he had objected to the special issues at trial, he had not objected separately to the nullification charge. Id., at 423-424 (Hervey, J., concurring); id., at 428 (Holcomb, J., concurring).
4
Smith I
The ruling of the Court of Criminal Appeals in Smith's second state habeas proceeding was reversed by this Court in Smith I. The Court's summary disposition first rejected as unconstitutional the Texas court's screening test for "constitutionally significant" evidence. 543 U.S., at 43-48, 125 S. Ct. 400; see also Tennard v. Dretke, 542 U.S. 274, 124 S. Ct. 2562, 159 L. Ed. 2d 384 (2004).
The Smith I Court next observed that although Smith had presented relevant mitigating evidence, the jury's consideration was "tied by law to findings of deliberateness and future dangerousness that had little, if anything, to do with" that evidence. 543 U.S., at 45, 48, 125 S. Ct. 400. There was, in other words, a Penry error. As a final matter, despite differences between the nullification charges in Smith I and Penry II, the variances were "constitutionally insignificant" because "Penry [II] identified a broad and intractable problem." 543 U.S., at 46, 47, 125 S. Ct. 400 (citing Penry II, 532 U.S., at 799-800, 121 S. Ct. 1910). The nullification charge was therefore inadequate under Penry II. The judgment was reversed and the case remanded. 543 U.S., at 48-49, 125 S. Ct. 400.
5
Remand Following Smith I
On remand Smith's brief urged that harmless-error review was inappropriate *1696 because under the nullification charge the jury proceedings became capricious. See Applicant's Brief on Remand in No. 74,228 (Tex.Crim.App.), pp. 8-18. The State responded that Smith was procedurally barred because he waited to raise his allegation of "jury charge error" under Penry II until the second state habeas petition nine years after his conviction. State's Brief on Remand in No. 74,228 (Tex.Crim. App.), pp. 1, 2 (hereinafter State's Brief on Remand). The State maintained this was an adequate and independent state ground for denying relief. Ibid. Smith's motion and direct appeal, the State said, had been based on a challenge to the statute setting forth the special issues, not to the jury charge. Id., at 5-6. The State also maintained that this Court had not addressed whether the special issues were "a sufficient vehicle for the jury to give effect to [Smith's] mitigation evidence." Id., at 12-16.
Smith replied to the procedural-bar argument by noting he had "consistently raised his claim regarding the inadequacy of the special issues to permit constitutionally adequate consideration of his mitigating evidence and this Court has consistently addressed the merits of [that] claim." Applicant's Reply Brief on Remand in No. 74,228 (Tex.Crim.App.), p. 1.
The Court of Criminal Appeals denied relief. The court's confusion with the interplay between Penry I and Penry II is evident from the beginning. Reasoning that "[t]he Supreme Court did not address our conclusion that the two special issues provided [Smith's] jury with a constitutionally sufficient vehicle to give effect to his mitigating evidence," 185 S.W.3d, at 463 (internal quotation marks omitted), the court again concluded that the special issues were adequate, id., at 464-467. Nevertheless, because of its "uncertainty" regarding this Court's Penry II jurisprudence, the Court of Criminal Appeals went on to "assume, for the sake of argument, that at least some of [Smith's] evidence was not fully encompassed by the two special issues" and that "the jury charge in this case was constitutionally deficient under Penry II." 185 S.W.3d, at 467.
The Court then applied the framework of Almanza v. State, 686 S.W.2d 157 (Tex. Crim.App.1984) (en banc), to Smith's claim of error. Under Almanza, Smith needed first to show instructional error. Having assumed Smith had done so, the court next asked whether the error was preserved for review. If so, Smith would need to establish some "actual," not merely theoretical, harm resulting from the error. If Smith had not preserved the error, by contrast, he would need to establish not merely some harm but also that the harm was egregious. 185 S.W.3d, at 467.
The court found Smith had not preserved his claim of instructional error. Smith's only objection at trial, reasoned the state court, was that the statute authorizing the special issues was unconstitutional in light of Penry I. 185 S.W.3d, at 461-462, and n. 8. This objection did not preserve a challenge to the nullification charge based on Penry II, so Smith was required to show egregious harm. That showing had not been addressed by this Court's holding in Smith I, the Court of Criminal Appeals indicated, because this Court only required that Smith demonstrate a reasonable probability of harm. In the view of the Court of Criminal Appeals there was little likelihood that Smith's jury had failed to consider the mitigating evidence. 185 S.W.3d, at 468-473. On this basis the court concluded Smith had failed to show egregious harm and, as such, habeas relief was foreclosed.
We granted certiorari. 549 U.S. ___, 127 S. Ct. 377, 166 L. Ed. 2d 265 (2006).
*1697 II
A
The special issues through which Smith's jury sentenced him to death did not meet constitutional standards, as held in Penry I; and the nullification charge did not cure that error, as held in Penry II. This was confirmed in Smith I. The Court of Criminal Appeals on remand denied relief, nonetheless, based on two determinations: first, that Smith's federal claim was not preserved; second, as a result, that Smith was required by Almanza to show egregious harm. As a general matter, and absent some important exceptions, when a state court denies relief because a party failed to comply with a regularly applied and well-established state procedural rule, a federal court will not consider that issue. Ford v. Georgia, 498 U.S. 411, 423-424, 111 S. Ct. 850, 112 L. Ed. 2d 935 (1991).
Smith disputes that the application of Almanza on state habeas review is a "firmly established and regularly followed state practice." James v. Kentucky, 466 U.S. 341, 348-349, 104 S. Ct. 1830, 80 L. Ed. 2d 346 (1984). The State argues it is. We may assume the State is correct on this point, for in our view the predicate finding of procedural failure that led the Court of Criminal Appeals to apply the heightened Almanza standard is based on a misinterpretation of federal law.
The State and the Court of Criminal Appeals read Smith I as having reversed because the nullification charge "prevented giving effect to [Smith's] mitigating evidence because it placed the jurors in an unconstitutional ethical quandary." Brief for Respondent 28. It is true Smith's second state habeas petition included an argument that the nullification charge itself prevented the jury from considering his mitigating evidence. This, however, was not the only, or even the primary, argument he presented to the Court of Criminal Appeals and this Court. As detailed above, Smith's central objection at each stage has been to the special issues.
In Smith I, this Court agreed the special issues were inadequate and so reversed the Court of Criminal Appeals. In challenging the special issues Smith did contend that the nullification charge was flawed. This Court engaged in much the same analysis. That analysis was only necessary, however, because the Court of Criminal Appeals had twice rejected Smith's claim of Penry error based on the mistaken idea that "regardless of whether [Smith's] mitigating evidence was beyond the scope of the two statutory special issues, the judge's extensive supplemental [nullification] instruction provided a sufficient vehicle for the jury to consider all of [Smith's] mitigating evidence." Ex parte Smith, 132 S.W.3d, at 410. In other words Smith argued, and this Court agreed, that the special issues prevented the jury from considering his mitigating evidence; and the nullification charge failed to cure that error. In its opposition to certiorari in Smith I, the State understood that under Penry II it was the special issues, not the nullification charge, that created the error. See Brief in Opposition in Smith v. Texas, O.T.2004, No. 04-5323, p. 17 ("In essence, the [nullification] instruction did not create new error; rather, the instruction simply failed to correct the error identified in Penry I").
The Court of Criminal Appeals' mistaken belief that Penry II, and by extension Smith I, rested on a separate error arising from the nullification charge may have stemmed from Smith's use of the term "Penry II error" in his supplemental brief and from this Court's citation to Penry II, rather than Penry I, in Smith I. Applicant's *1698 Supp. Briefing 11. Smith's labeling of the claim in his supplemental brief, however, did not change its substance. See Ex parte Caldwell, 58 S.W.3d 127, 130 (Tex.Crim.App.2000); Rawlings v. State, 874 S.W.2d 740, 742 (Tex.App.Fort Worth 1994). And this Court's reference to Penry II, rather than Penry I, has been explained above. As the parties' post-trial filings, the state courts' judgments, and this Court's decision in Smith I make clear, Smith challenged the special issues under Penry I at trial and did not abandon or transform that claim during his lengthy post-trial proceedings.
After Smith I, the State argued for the first time that Smith's pretrial motions, and his argument on direct appeal, raised a "statutory" complaint about the entire Texas death penalty scheme different from his current theory. State's Brief on Remand 6. The State expanded on that claim in its arguments to this Court, in which it suggested Smith made a strategic decision to launch a broad attack on the state system rather than attempt to obtain adequate instructions in his own case. Brief for Respondent 28, 32-33; Tr. of Oral Arg. 40. Regardless of how the State now characterizes it, Smith's claim was treated by the Court of Criminal Appeals as a Penry challenge to the adequacy of the special issues in his case, and that is how it was treated by this Court in Smith I.
The Court of Criminal Appeals on remand misunderstood the interplay of Penry I and Penry II, and it mistook which of Smith's claims furnished the basis for this Court's opinion in Smith I. These errors of federal law led the state court to conclude Smith had not preserved at trial the claim this Court vindicated in Smith I, even when the Court of Criminal Appeals previously had held Smith's claim of Penry error was preserved. The state court's error of federal law cannot be the predicate for requiring Smith to show egregious harm. Ake v. Oklahoma, 470 U.S. 68, 75, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985).
B
Under Almanza, once Smith established the existence of instructional error that was preserved by a proper objection, he needed only to show he suffered "some harm" from that error. In other words relief should be granted so long as the error was not harmless. 686 S.W.2d, at 171. It would appear this lower standard applies to Smith's preserved challenge to the special issues.
The Court of Criminal Appeals explained in its recent decision in Penry v. State, 178 S.W.3d 782 (2005), that once a state habeas petitioner establishes "a reasonable likelihood that the jury believed that it was not permitted to consider" some mitigating evidence, he has shown that the error was not harmless and therefore is grounds for reversal. Id., at 786-788 (citing Boyde v. California, 494 U.S. 370, 110 S. Ct. 1190, 108 L. Ed. 2d 316 (1990)). We note that the Court of Criminal Appeals stated in dicta in this case that even assuming Smith had established that there was a reasonable probability of error, he had not shown "`actual' harm," 185 S.W.3d, at 468, and therefore would not even satisfy the lower Almanza standard. We must assume that this departure from the clear rule of Penry v. State resulted from the state court's confusion over our decision in Smith I.
The Court of Criminal Appeals is, of course, required to defer to our finding of Penry error, which is to say our finding that Smith has shown there was a reasonable likelihood that the jury interpreted the special issues to foreclose adequate consideration of his mitigating evidence. See Johnson v. Texas, 509 U.S. 350, 367, 113 S. Ct. 2658, 125 L. Ed. 2d 290 (1993). *1699 Accordingly, it appears Smith is entitled to relief under the state harmless-error framework.
* * *
In light of our resolution of this case, we need not reach the question whether the nullification charge resulted in a separate jury-confusion error, and if so whether that error is subject to harmless-error review.
For the reasons we have stated, the judgment of the Court of Criminal Appeals is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered. | The jury in a Texas state court convicted petitioner LaRoyce Lathair of first-degree murder and determined he should receive a death sentence. This Court now reviews a challenge to the sentencing proceeding for a second time. The sentencing took place in the interim between our decisions in and n Penry the Court addressed the special-issue questions then submitted to Texas juries to guide their sentencing determinations in capital cases. The decision held that the Texas special issues were insufficient to allow proper consideration of some forms of mitigating Following a pretrial challenge to the special issues by the trial court issued a charge instructing the jury to nullify the special issues if the mitigating evidence, taken as *1690 a whole, convinced the jury did not deserve the death penalty. After 's trial, Penry held a similar nullification charge insufficient to cure the flawed special issues. on state collateral review, continued to seek relief based on the inadequacy of the special issues, arguing that the nullification charge had not remedied the problem identified in his pretrial objection. The Texas Court of Criminal Appeals affirmed the denial of relief, distinguishing 's case from the Penry precedents. Ex parte This Court, by summary disposition, reversed. ( ). On remand the Court of Criminal Appeals again denied relief. t held, for the first time, that 's pretrial objections did not preserve the claim of constitutional error he asserts. Under the Texas framework for determining whether an instructional error merits reversal, the state court explained, this procedural default required to show egregious harm a burden the court held he did not meet. Ex parte The requirement that show egregious harm was predicated, we hold, on a misunderstanding of the federal right asserts; and we therefore reverse. A The Special ssues Under Texas law the jury verdict form provides special-issue questions to guide the jury in determining whether the death penalty should be imposed. At the time of 's trial, Texas law set forth three special issues. The first addressed deliberateness; the second concerned future dangerousness; and the third asked whether the killing was an unreasonable response to provocation by the victim. Provocation was not applicable to 's case so the third question was not included in the instructions. f the jury answered the two applicable special-issue questions in the affirmative, the death penalty would be imposed. n Penry the Court held that neither of these special-issue instructions was "broad enough to provide a vehicle for the jury to give mitigating effect" to the evidence at issue in that case. Penry (citing, and characterizing, Penry ). We refer to the inadequacy of the special issue instructions as "Penry error." For the brief period between Penry and the Texas Legislature's addition of a catchall special issue, Texas courts attempted to cure Penry error with a nullification charge. n 's case the trial court instructed that if a juror was convinced the correct answer to each special-issue question was "yes," but nevertheless concluded the defendant did not deserve death in light of all the mitigating evidence, the juror must answer one special-issue question "no." The charge was not incorporated into the verdict form. See, e.g., -124. n essence the jury was instructed to misrepresent its answer to one of the two special issues when necessary to take account of the mitigating n Penry the Court concluded that a nullification charge created an ethical and logical dilemma that prevented jurors from giving effect to the mitigating evidence when the evidence was outside the scope of the special issues. As the Court explained, "because the supplemental [nullification] instruction had no practical effect, the jury instructions were not meaningfully different from the ones we found *1691 constitutionally inadequate in Penry" 532 U.S., n other words, Penry held that the nullification charge did not cure the Penry error. Penry and recognized the ethical dilemma, the confusion, and the capriciousness introduced into jury deliberations by directing the jury to distort the meaning of an instruction and a verdict form. Penry ; These are problems distinct from Penry error and may be grounds for reversal as an independent matter; but we need not reach that issue here, just as the Court did not need to reach it in Penry or When this Court reversed the Court of Criminal Appeals in it did so because the nullification charge had not cured the underlying Penry error. See (holding that "the burden of proof was tied by law to findings of deliberateness and future dangerousness that had little, if anything, to do with" the mitigating evidence). While the ethical and logical quandary caused by the jury nullification charge may give rise to distinct error, this was not the basis for reversal in On remand the Court of Criminal Appeals misunderstood this point. ts interpretation of federal law was incorrect. n light of our decision in our review of the facts need not restate the brutality of the murder committed or the evidence he offered in mitigation. See We need only address the conclusion of the Court of Criminal Appeals that the constitutional error asserted by was caused by the nullification charge and that, having failed to alert the trial court to that error, was required to demonstrate egregious harm to obtain relief. B The Trial Before voir dire, filed three written motions addressing the jury instructions. n the first, he argued that and Penry established the constitutional inadequacy of the special issues. The motion maintained that Texas law denied the trial court power to cure the problem because "[t]he exclusive methodology for submission to the jury of special issues with regard to infliction of the death penalty [is] contained in" Article 37.071 of the Texas Code of Criminal Procedure Annotated (Vernon Supp. Pamphlet), which did not authorize the trial court to add an additional special issue on mitigation. The trial court, the objection stated, would not be able to provide "any instruction with regard to mitigating evidence which would permit the jury to make a moral reasoned response to" mitigating evidence not covered by the special issues. bid. would offer such The second pretrial motion raised a related but distinct began by noting that in Jurek the Supreme Court had found Article 37.071 constitutional on its face. He argued, however, it did so with the understanding that the Texas courts would give broad construction to terms in the special issues such as "`deliberately.'" They had not done so and therefore "[t]here [was] no provision in Texas for the jury to decide the appropriateness of the death penalty taking into consideration the personal moral culpability of the [d]efendant balanced by mitigating evidence which is not directly or circumstantially probative in answering the special issues." d., therefore reasoned that Article 37.071 was unconstitutional. *1692 The third pretrial motion asked the court to state the contents of the mitigation charge prior to voir dire so could exercise his jury challenges intelligently. d., The trial court denied the first two motions. d., n response to the third it provided a copy of its proposed mitigation charge. That charge, which we will refer to as "the nullification charge," defined mitigating evidence broadly before explaining to the jury, in relevant part: "[]f you believe that the State has proved beyond a reasonable doubt that the answers to the Special ssues are `Yes,' and you also believe from the mitigating evidence, if any, that the Defendant should not be sentenced to death, then you shall answer at least one of the Special ssues `No' in order to give effect to your belief that the death penalty should not be imposed due to the mitigating evidence presented to you. n this regard, you are further instructed that the State of Texas must prove beyond a reasonable doubt that the death sentence should be imposed despite the mitigating evidence, if any, admitted before you." (internal quotation marks and citation omitted). The nullification charge did not define or describe the special issues. -110. The judge told counsel: "f you see something in that charge that you'd like worded differently or you think could be made clearer or better, 'm always willing to entertain different wording or different ways of putting the idea. So if you come up with something you like better, just let me know and 'll look at it." d., raised no additional objection and did not suggest alternative wording for the nullification charge. The jury received the nullification charge from the judge, but the verdict form did not incorporate it. The form was confined to the special issues of deliberateness and future dangerousness. d., The jury unanimously answered "yes" to both special-issue questions, and was sentenced to death. C Post-Trial Proceedings The State does not contest the validity of 's challenge to the special issues in his pretrial motion. t does contend that since did not object to the nullification charge, his state habeas petition rests on an unpreserved claim, namely that the nullification charge excluded his mitigating The State's formulation of the federal right claimed by a formulation accepted by the Court of Criminal Appeals, is based on an incorrect reading of federal law and this Court's precedents. Considering 's first two pretrial motions together, as the trial court did, it is evident 's objection was that the special-issue framework violated the Eighth Amendment because it prevented the court from formulating jury instructions that would ensure adequate consideration of his mitigating This framework failed because the special issues were too narrow, the trial court was unable to promulgate a new catchall special issue, and the Texas courts did not define "deliberately" in broad terms. The State is correct that this was an objection based on Penry error, not one based on the confusion caused by the nullification instruction. A review of 's post-trial proceedings shows that the central argument of his habeas petition, and the basis for this Court's decision in is the same constitutional error asserted at trial. 1 Direct Appeal On direct appeal from the trial court, renewed his argument that the special issues were unconstitutional: *1693 "[]n [Penry ], the Supreme Court held that there was an Eighth Ame[n]dment violation where there was mitigating evidence not relevant to the special verdict questions, or that had relevance to the defendant's moral culpability beyond the scope of the special verdict questions, and the jury instructions would have provided the jury with no vehicle for expressing its reasoned moral response to that "By its extremely narrow interpretation of the requirements of Penry, this Court has unconstitutionally narrowed the sentencer's discretion to consider relevant mitigating evidence The special issues do not in reality provide a vehicle for individualized consideration of the appropriateness of assessment of the death penalty and [the article establishing them] is unconstitutional as applied." -134. Both the Court of Criminal Appeals, in its most recent opinion, and the State, in its brief on direct appeal, recognized 's pretrial motions preserved this and n. 9 (holding 's direct-appeal argument that "the jury was unable to give effect to his mitigating evidence in answering the special issues" was "based upon his pretrial motion"); Brief for Texas in No. 71,333 (Tex. Crim.App.), p. 62, Record 674 ("[] reiterates his [pretrial] claim that the statute is unconstitutional as applied since it fails to provide an effective vehicle for the jury to apply mitigating evidence"). n its opinion affirming the sentence on direct review the Court of Criminal Appeals held that the "instruction complied with Penry and provided a sufficient vehicle for the jury to consider any mitigating evidence [] offered." v. State, No. 71,333 p. 11, 2 First and Second State Habeas n 1998, sought state habeas relief. Under state law the petition was untimely. The Court of Criminal Appeals, over a dissent, rejected an argument that neglect by 's counsel merited equitable tolling. Ex parte (Tex.Crim.App.1998) (en banc); see Texas then amended its filing rules to allow the exception the Court of Criminal Appeals had declined to create. The statutory change permitted to file for habeas relief. filed his second habeas petition before this Court's decision in Penry He argued once more that the special issues were inadequate: "n Penry [], the Supreme Court held that the former Texas capital sentencing statute did not provide an adequate vehicle for expressing its reasoned moral response to [mitigating] evidence in rendering its sentencing decision." Application for Writ of Habeas Corpus Pursuant to Section 4A of Article 11.071 of the Texas Code of Criminal Procedure in No. W91-22803-R(A) (Tex.Crim. App.), p. 191, Record 193 acknowledged the trial court tried to solve the problem with the nullification charge, but he explained that "[i]t confounds common sense to suggest jurors who are sworn to tell the truth would ever understand that they were authorized to answer [special-issue] questions falsely." d., Record 195. continued: "Nothing in the special issues themselves linked the `nullification' instruction to the specific questions asked; nothing in the special issues themselves authorized the jury to consider mitigating evidence when answering the questions; *1694 nothing in the special issues themselves authorized the jury to answer the questions `no' when the truthful answer was `yes'; in short, nothing in the special issues permitted the jury to apply the `nullification' instruction." d., Record 196. conceded he had not objected to the nullification charge but confirmed that he had challenged the special-issues statute and that the Court of Criminal Appeals had reached the merits of this claim on direct review. The State, relying upon a procedural bar different from and indeed contradictory to the one it now raises, responded that "[t]his claim [was] procedurally barred as it was both raised and decided on the merits on direct appeal." ; see also (describing 's position as an "identical complaint" and an "identical argument" to his claim on direct appeal). The State contended, in the alternative, that 's position was meritless because the nullification charge cured any problem with the special issues. Respondent's Original Answer and Response to Applicant's Application for Writ of Habeas Corpus in No. W91-22803-R(A) (Tex. Crim.App.), pp. 136-139, Record 467-470. The state trial court denied habeas relief on the ground was procedurally barred from raising the same claim denied on direct review absent "a subsequent change in the law so as to render the judgment void" Ex parte No. W91-22803-R, 86-87 3 Appeal from the Denial of State Habeas Relief While 's appeal from the state trial court's denial of his second habeas petition was pending, this Court decided Penry filed a brief in the Court of Criminal Appeals explaining the relevance of Penry to his habeas claim. He noted that the special-issue questions in his case were for all relevant purposes the same as those in Penry Applicant's Brief for Submission in View of the United States Supreme Court's Opinion in in No. W91-22803-R (Tex.Crim.App.), pp. 4-5. He maintained the nullification charges were also indistinguishable, and had in Penry been held insufficient "to cure the error created by the Special ssues." Applicant's Brief for Submission, at 6-7. concluded by explaining that the procedural bar for raising an issue already resolved on direct review did not apply "where an intervening legal decision renders a previously rejected claim meritorious." d., at 12 (en banc)). (We note the Court of Criminal Appeals recently adopted this position. See Ex parte Hood, (Tex.Crim.App.2007).) The Court of Criminal Appeals ordered supplemental briefing on the relevance of Penry Given that Penry addressed the sufficiency of a nullification charge as a cure for inadequate special issues, 's supplemental brief concentrated on the same issue. Nevertheless, his central argument remained that he "presented significant mitigating evidence that was virtually indistinguishable from Penry's and thus undeniably beyond the scope of the special issues." Applicant's Supplemental Briefing on Submission in No. 74,228 (Tex. Crim.App.), p. 12 (hereinafter Applicant's Supp. Briefing). The nullification charge was inadequate as well, in his view, because, based on the ethical dilemma, "there is a reasonable probability that the nullification instruction precluded [a juror who found that 's personal culpability did not warrant a death sentence] *1695 from expressing that conclusion." d., Alternatively, argued he was "also entitled to relief under Penry " because "[e]ven if the jury might have been able to give effect to some of [his] mitigating evidence within the scope of [the] special issues, the confusing nullification instruction itself" may have prevented the jury from doing so. d., As such, the nullification charge was "worse than no instruction at all." d., The State responded that the special issues were adequate and, furthermore, that the nullification charge, unlike the charge in Penry cured any problem. State's Brief in No. 74,228 (Tex.Crim. App.), pp. 2-11. n response to 's second argument the State contended "it tests the bounds of reason to grant [] relief based on a good-faith attempt to give him a supplemental instruction to which he was not constitutionally entitled." d., n reply reiterated his two distinct arguments, devoting most of the brief to his original trial objection. Applicant's Reply to Respondent's Response to Applicant's Brief for Submission in No. 74,228 (Tex.Crim.App.). The Court of Criminal Appeals denied the habeas petition. t found no Penry error, reasoning that the special issues were adequate to consider the mitigating Ex parte -415. Any evidence excluded from the purview of the jury, the court indicated, was not "constitutionally significant." d., n the alternative the court held the nullification charge and the argument at trial were distinguishable from those at issue in Penry n 's case, the court reasoned, the nullification charge would have been an adequate cure even if the special issues were too -417. The majority did not adopt or address the reasoning of the two concurring opinions, which argued that had procedurally defaulted his "Penry claim" because while he had objected to the special issues at trial, he had not objected separately to the nullification charge. d., ; 4 The ruling of the Court of Criminal Appeals in 's second state habeas proceeding was reversed by this Court in The Court's summary disposition first rejected as unconstitutional the Texas court's screening test for "constitutionally significant" -48, The Court next observed that although had presented relevant mitigating evidence, the jury's consideration was "tied by law to findings of deliberateness and future dangerousness that had little, if anything, to do with" that 48, There was, in other words, a Penry error. As a final matter, despite differences between the nullification charges in and Penry the variances were "constitutionally insignificant" because "Penry [] identified a broad and intractable problem." 47, (citing Penry -800, ). The nullification charge was therefore inadequate under Penry The judgment was reversed and the case remanded. -49, 5 Remand Following On remand 's brief urged that harmless-error review was inappropriate *1696 because under the nullification charge the jury proceedings became capricious. See Applicant's Brief on Remand in No. 74,228 (Tex.Crim.App.), pp. 8-18. The State responded that was procedurally barred because he waited to raise his allegation of "jury charge error" under Penry until the second state habeas petition nine years after his conviction. State's Brief on Remand in No. 74,228 (Tex.Crim. App.), pp. 1, 2 (hereinafter State's Brief on Remand). The State maintained this was an adequate and independent state ground for denying relief. bid. 's motion and direct appeal, the State said, had been based on a challenge to the statute setting forth the special issues, not to the jury charge. d., The State also maintained that this Court had not addressed whether the special issues were "a sufficient vehicle for the jury to give effect to ['s] mitigation " d., replied to the procedural-bar argument by noting he had "consistently raised his claim regarding the inadequacy of the special issues to permit constitutionally adequate consideration of his mitigating evidence and this Court has consistently addressed the merits of [that] claim." Applicant's Reply Brief on Remand in No. 74,228 (Tex.Crim.App.), p. 1. The Court of Criminal Appeals denied relief. The court's confusion with the interplay between Penry and Penry is evident from the beginning. Reasoning that "[t]he Supreme Court did not address our conclusion that the two special issues provided ['s] jury with a constitutionally sufficient vehicle to give effect to his mitigating evidence," the court again concluded that the special issues were adequate, Nevertheless, because of its "uncertainty" regarding this Court's Penry jurisprudence, the Court of Criminal Appeals went on to "assume, for the sake of argument, that at least some of ['s] evidence was not fully encompassed by the two special issues" and that "the jury charge in this case was constitutionally deficient under Penry" The Court then applied the framework of (en banc), to 's claim of error. Under Almanza, needed first to show instructional error. Having assumed had done so, the court next asked whether the error was preserved for review. f so, would need to establish some "actual," not merely theoretical, harm resulting from the error. f had not preserved the error, by contrast, he would need to establish not merely some harm but also that the harm was The court found had not preserved his claim of instructional error. 's only objection at trial, reasoned the state court, was that the statute authorizing the special issues was unconstitutional in light of Penry -462, and n. 8. This objection did not preserve a challenge to the nullification charge based on Penry so was required to show egregious harm. That showing had not been addressed by this Court's holding in the Court of Criminal Appeals indicated, because this Court only required that demonstrate a reasonable probability of harm. n the view of the Court of Criminal Appeals there was little likelihood that 's jury had failed to consider the mitigating -473. On this basis the court concluded had failed to show egregious harm and, as such, habeas relief was foreclosed. We granted certiorari. 549 U.S. *1697 A The special issues through which 's jury sentenced him to death did not meet constitutional standards, as held in Penry ; and the nullification charge did not cure that error, as held in Penry This was confirmed in The Court of Criminal Appeals on remand denied relief, nonetheless, based on two determinations: first, that 's federal claim was not preserved; second, as a result, that was required by Almanza to show egregious harm. As a general matter, and absent some important exceptions, when a state court denies relief because a party failed to comply with a regularly applied and well-established state procedural rule, a federal court will not consider that issue. disputes that the application of Almanza on state habeas review is a "firmly established and regularly followed state practice." The State argues it is. We may assume the State is correct on this point, for in our view the predicate finding of procedural failure that led the Court of Criminal Appeals to apply the heightened Almanza standard is based on a misinterpretation of federal law. The State and the Court of Criminal Appeals read as having reversed because the nullification charge "prevented giving effect to ['s] mitigating evidence because it placed the jurors in an unconstitutional ethical quandary." Brief for Respondent 28. t is true 's second state habeas petition included an argument that the nullification charge itself prevented the jury from considering his mitigating This, however, was not the only, or even the primary, argument he presented to the Court of Criminal Appeals and this Court. As detailed above, 's central objection at each stage has been to the special issues. n this Court agreed the special issues were inadequate and so reversed the Court of Criminal Appeals. n challenging the special issues did contend that the nullification charge was flawed. This Court engaged in much the same analysis. That analysis was only necessary, however, because the Court of Criminal Appeals had twice rejected 's claim of Penry error based on the mistaken idea that "regardless of whether ['s] mitigating evidence was beyond the scope of the two statutory special issues, the judge's extensive supplemental [nullification] instruction provided a sufficient vehicle for the jury to consider all of ['s] mitigating " Ex parte n other words argued, and this Court agreed, that the special issues prevented the jury from considering his mitigating evidence; and the nullification charge failed to cure that error. n its opposition to certiorari in the State understood that under Penry it was the special issues, not the nullification charge, that created the error. See Brief in Opposition in O.T., No. 04-5323, p. 17 ("n essence, the [nullification] instruction did not create new error; rather, the instruction simply failed to correct the error identified in Penry "). The Court of Criminal Appeals' mistaken belief that Penry and by extension rested on a separate error arising from the nullification charge may have stemmed from 's use of the term "Penry error" in his supplemental brief and from this Court's citation to Penry rather than Penry in Applicant's *1698 Supp. Briefing 11. 's labeling of the claim in his supplemental brief, however, did not change its substance. See Ex parte Caldwell, (Tex.Crim.App.2000); And this Court's reference to Penry rather than Penry has been explained above. As the parties' post-trial filings, the state courts' judgments, and this Court's decision in make clear, challenged the special issues under Penry at trial and did not abandon or transform that claim during his lengthy post-trial proceedings. After the State argued for the first time that 's pretrial motions, and his argument on direct appeal, raised a "statutory" complaint about the entire Texas death penalty scheme different from his current theory. State's Brief on Remand 6. The State expanded on that claim in its arguments to this Court, in which it suggested made a strategic decision to launch a broad attack on the state system rather than attempt to obtain adequate instructions in his own case. Brief for Respondent 28, 32-33; Tr. of Oral Arg. 40. Regardless of how the State now characterizes it, 's claim was treated by the Court of Criminal Appeals as a Penry challenge to the adequacy of the special issues in his case, and that is how it was treated by this Court in The Court of Criminal Appeals on remand misunderstood the interplay of Penry and Penry and it mistook which of 's claims furnished the basis for this Court's opinion in These errors of federal law led the state court to conclude had not preserved at trial the claim this Court vindicated in even when the Court of Criminal Appeals previously had held 's claim of Penry error was preserved. The state court's error of federal law cannot be the predicate for requiring to show egregious harm. B Under Almanza, once established the existence of instructional error that was preserved by a proper objection, he needed only to show he suffered "some harm" from that error. n other words relief should be granted so long as the error was not t would appear this lower standard applies to 's preserved challenge to the special issues. The Court of Criminal Appeals explained in its recent decision in that once a state habeas petitioner establishes "a reasonable likelihood that the jury believed that it was not permitted to consider" some mitigating evidence, he has shown that the error was not harmless and therefore is grounds for reversal. d., at 786-788 ). We note that the Court of Criminal Appeals stated in dicta in this case that even assuming had established that there was a reasonable probability of error, he had not shown "`actual' harm," and therefore would not even satisfy the lower Almanza standard. We must assume that this departure from the clear rule of resulted from the state court's confusion over our decision in The Court of Criminal Appeals is, of course, required to defer to our finding of Penry error, which is to say our finding that has shown there was a reasonable likelihood that the jury interpreted the special issues to foreclose adequate consideration of his mitigating See *1699 Accordingly, it appears is entitled to relief under the state harmless-error framework. * * * n light of our resolution of this case, we need not reach the question whether the nullification charge resulted in a separate jury-confusion error, and if so whether that error is subject to harmless-error review. For the reasons we have stated, the judgment of the Court of Criminal Appeals is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. t is so ordered. |
Justice Marshall | majority | false | Ford v. Wainwright | 1986-06-26T00:00:00 | null | https://www.courtlistener.com/opinion/111725/ford-v-wainwright/ | https://www.courtlistener.com/api/rest/v3/clusters/111725/ | 1,986 | 1985-131 | 2 | 5 | 4 | For centuries no jurisdiction has countenanced the execution of the insane, yet this Court has never decided whether the Constitution forbids the practice. Today we keep faith with our common-law heritage in holding that it does.
I
Alvin Bernard Ford was convicted of murder in 1974 and sentenced to death. There is no suggestion that he was incompetent at the time of his offense, at trial, or at sentencing. *402 In early 1982, however, Ford began to manifest gradual changes in behavior. They began as an occasional peculiar idea or confused perception, but became more serious over time. After reading in the newspaper that the Ku Klux Klan had held a rally in nearby Jacksonville, Florida, Ford developed an obsession focused upon the Klan. His letters to various people reveal endless brooding about his "Klan work," and an increasingly pervasive delusion that he had become the target of a complex conspiracy, involving the Klan and assorted others, designed to force him to commit suicide. He believed that the prison guards, part of the conspiracy, had been killing people and putting the bodies in the concrete enclosures used for beds. Later, he began to believe that his women relatives were being tortured and sexually abused somewhere in the prison. This notion developed into a delusion that the people who were tormenting him at the prison had taken members of Ford's family hostage. The hostage delusion took firm hold and expanded, until Ford was reporting that 135 of his friends and family were being held hostage in the prison, and that only he could help them. By "day 287" of the "hostage crisis," the list of hostages had expanded to include "senators, Senator Kennedy, and many other leaders." App. 53. In a letter to the Attorney General of Florida, written in 1983, Ford appeared to assume authority for ending the "crisis," claiming to have fired a number of prison officials. He began to refer to himself as "Pope John Paul, III," and reported having appointed nine new justices to the Florida Supreme Court. Id., at 59.
Counsel for Ford asked a psychiatrist who had examined Ford earlier, Dr. Jamal Amin, to continue seeing him and to recommend appropriate treatment. On the basis of roughly 14 months of evaluation, taped conversations between Ford and his attorneys, letters written by Ford, interviews with Ford's acquaintances, and various medical records, Dr. Amin concluded in 1983 that Ford suffered from "a severe, uncontrollable, mental disease which closely resembles `Paranoid *403 Schizophrenia With Suicide Potential' " a "major mental disorder. . . severe enough to substantially affect Mr. Ford's present ability to assist in the defense of his life." Id., at 91.
Ford subsequently refused to see Dr. Amin again, believing him to have joined the conspiracy against him, and Ford's counsel sought assistance from Dr. Harold Kaufman, who interviewed Ford in November 1983. Ford told Dr. Kaufman that "I know there is some sort of death penalty, but I'm free to go whenever I want because it would be illegal and the executioner would be executed." Id., at 65. When asked if he would be executed, Ford replied: "I can't be executed because of the landmark case. I won. Ford v. State will prevent executions all over." Id., at 66. These statements appeared amidst long streams of seemingly unrelated thoughts in rapid succession. Dr. Kaufman concluded that Ford had no understanding of why he was being executed, made no connection between the homicide of which he had been convicted and the death penalty, and indeed sincerely believed that he would not be executed because he owned the prisons and could control the Governor through mind waves. Id., at 67. Dr. Kaufman found that there was "no reasonable possibility that Mr. Ford was dissembling, malingering or otherwise putting on a performance . . . ." Id., at 65. The following month, in an interview with his attorneys, Ford regressed further into nearly complete incomprehensibility, speaking only in a code characterized by intermittent use of the word "one," making statements such as "Hands one, face one. Mafia one. God one, father one, Pope one. Pope one. Leader one." Id., at 72.
Counsel for Ford invoked the procedures of Florida law governing the determination of competency of a condemned inmate, Fla. Stat. § 922.07 (1985). Following the procedures set forth in the statute, the Governor of Florida appointed a panel of three psychiatrists to evaluate whether, under § 922.07(2), Ford had "the mental capacity to understand the nature of the death penalty and the reasons why it was imposed *404 upon him." At a single meeting, the three psychiatrists together interviewed Ford for approximately 30 minutes. Each doctor then filed a separate two- or three-page report with the Governor, to whom the statute delegates the final decision. One doctor concluded that Ford suffered from "psychosis with paranoia" but had "enough cognitive functioning to understand the nature and the effects of the death penalty, and why it is to be imposed on him." App. 103. Another found that, although Ford was "psychotic," he did "know fully what can happen to him." Id., at 105-106. The third concluded that Ford had a "severe adaptational disorder," but did "comprehend his total situation including being sentenced to death, and all of the implications of that penalty." Id., at 99-100. He believed that Ford's disorder, "although severe, seem[ed] contrived and recently learned." Id., at 100. Thus, the interview produced three different diagnoses, but accord on the question of sanity as defined by state law.
The Governor's decision was announced on April 30, 1984, when, without explanation or statement, he signed a death warrant for Ford's execution. Ford's attorneys unsuccessfully sought a hearing in state court to determine anew Ford's competency to suffer execution. Ford v. Wainwright, 451 So. 2d 471, 475 (Fla. 1984). Counsel then filed a petition for habeas corpus in the United States District Court for the Southern District of Florida, seeking an evidentiary hearing on the question of Ford's sanity, proffering the conflicting findings of the Governor-appointed commission and subsequent challenges to their methods by other psychiatrists. The District Court denied the petition without a hearing. The Court of Appeals granted a certificate of probable cause and stayed Ford's execution, Ford v. Strickland, 734 F.2d 538 (CA11 1984), and we rejected the State's effort to vacate the stay of execution. Wainwright v. Ford, 467 U.S. 1220 (1984). The Court of Appeals then addressed the merits of Ford's claim and a divided panel affirmed the District *405 Court's denial of the writ. 752 F.2d 526 (CA11 1985). This Court granted Ford's petition for certiorari in order to resolve the important issue whether the Eighth Amendment prohibits the execution of the insane and, if so, whether the District Court should have held a hearing on petitioner's claim. 474 U.S. 1019 (1985).
II
Since this Court last had occasion to consider the infliction of the death penalty upon the insane, our interpretations of the Due Process Clause and the Eighth Amendment have evolved substantially. In Solesbee v. Balkcom, 339 U.S. 9 (1950), a condemned prisoner claimed a due process right to a judicial determination of his sanity, yet the Court did not consider the possible existence of a right under the Eighth Amendment, which had not yet been applied to the States. The sole question the Court addressed was whether Georgia's procedure for ascertaining sanity adequately effectuated that State's own policy of sparing the insane from execution. See also Caritativo v. California, 357 U. S> 549 (1958); United States ex rel. Smith v. Baldi, 344 U.S. 561 (1953); Phyle v. Duffy, 334 U.S. 431 (1948); Nobles v. Georgia, 168 U.S. 398 (1897). Now that the Eighth Amendment has been recognized to affect significantly both the procedural and the substantive aspects of the death penalty, the question of executing the insane takes on a wholly different complexion. The adequacy of the procedures chosen by a State to determine sanity, therefore, will depend upon an issue that this Court has never addressed: whether the Constitution places a substantive restriction on the State's power to take the life of an insane prisoner.
There is now little room for doubt that the Eighth Amendment's ban on cruel and unusual punishment embraces, at a minimum, those modes or acts of punishment that had been considered cruel and unusual at the time that the Bill of Rights was adopted. See Solem v. Helm, 463 U.S. 277, 285-286 (1983); id., at 312-313 (BURGER, C. J., joined by *406 WHITE REHNQUIST, and O'CONNOR, JJ., dissenting); Furman v. Georgia, 408 U.S. 238, 264 (1972) (BRENNAN, J., concurring); McGautha v. California, 402 U.S. 183, 226 (1971) (Black, J., concurring). "Although the Framers may have intended the Eighth Amendment to go beyond the scope of its English counterpart, their use of the language of the English Bill of Rights is convincing proof that they intended to provide at least the same protection. . . ." Solem v. Helm, supra, at 286.
Moreover, the Eighth Amendment's proscriptions are not limited to those practices condemned by the common law in 1789. See Gregg v. Georgia, 428 U.S. 153, 171 (1976) (opinion of Stewart, POWELL, and STEVENS, JJ.). Not bound by the sparing humanitarian concessions of our forebears, the Amendment also recognizes the "evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion). In addition to considering the barbarous methods generally outlawed in the 18th century, therefore, this Court takes into account objective evidence of contemporary values before determining whether a particular punishment comports with the fundamental human dignity that the Amendment protects. See Coker v. Georgia, 433 U.S. 584, 597 (1977) (plurality opinion).
A
We begin, then, with the common law. The bar against executing a prisoner who has lost his sanity bears impressive historical credentials; the practice consistently has been branded "savage and inhuman." 4 W. Blackstone, Commentaries *24-*25 (hereinafter Blackstone). Blackstone explained:
"[I]diots and lunatics are not chargeable for their own acts, if committed when under these incapacities: no, not even for treason itself. Also, if a man in his sound memory commits a capital offence, and before arraignment for it, he becomes mad, he ought not to be arraigned for *407 it: because he is not able to plead to it with that advice and caution that he ought. And if, after he has pleaded, the prisoner becomes mad, he shall not be tried: for how can he make his defence? If, after he be tried and found guilty, he loses his senses before judgment, judgment shall not be pronounced; and if, after judgment, he becomes of nonsane memory, execution shall be stayed: for peradventure, says the humanity of the English law, had the prisoner been of sound memory, he might have alleged something in stay of judgment or execution." Ibid. (footnotes omitted).
Sir Edward Coke had earlier expressed the same view of the common law of England: "[B]y intendment of Law the execution of the offender is for example, . . . but so it is not when a mad man is executed, but should be a miserable spectacle, both against Law, and of extream inhumanity and cruelty, and can be no example to others." 3 E. Coke, Institutes 6 (6th ed. 1680) (hereinafter Coke). Other recorders of the common law concurred. See 1 M. Hale, Pleas of the Crown 35 (1736) (hereinafter Hale); 1 W. Hawkins, Pleas of the Crown 2 (7th ed. 1795) (hereinafter Hawkins); Hawles, Remarks on the Trial of Mr. Charles Bateman, 11 How. St. Tr. 474, 477 (1685) (hereinafter Hawles).
As is often true of common-law principles, see O. Holmes, The Common Law 5 (1881), the reasons for the rule are less sure and less uniform than the rule itself. One explanation is that the execution of an insane person simply offends humanity, Coke 6; another, that it provides no example to others and thus contributes nothing to whatever deterrence value is intended to be served by capital punishment. Ibid. Other commentators postulate religious underpinnings: that it is uncharitable to dispatch an offender "into another world, when he is not of a capacity to fit himself for it," Hawles 477. It is also said that execution serves no purpose in these cases because madness is its own punishment: furiosus *408 solo furore punitur. Blackstone *395. More recent commentators opine that the community's quest for "retribution" the need to offset a criminal act by a punishment of equivalent "moral quality" is not served by execution of an insane person, which has a "lesser value" than that of the crime for which he is to be punished. Hazard & Louisell, Death, the State, and the Insane: Stay of Execution, 9 UCLA L. Rev. 381, 387 (1962). Unanimity of rationale, therefore, we do not find. "But whatever the reason of the law is, it is plain the law is so." Hawles 477. We know of virtually no authority condoning the execution of the insane at English common law.[1]
Further indications suggest that this solid proscription was carried to America, where it was early observed that "the judge is bound" to stay the execution upon insanity of the prisoner. 1 J. Chitty, A Practical Treatise on the Criminal Law *761; see 1 F. Wharton, A Treatise on Criminal Law § 59 (8th ed. 1880).
B
This ancestral legacy has not outlived its time. Today, no State in the Union permits the execution of the insane.[2] It *409 is clear that the ancient and humane limitation upon the State's ability to execute its sentences has as firm a hold upon the jurisprudence of today as it had centuries ago in England. The various reasons put forth in support of the common-law restriction have no less logical, moral, and practical force than they did when first voiced. For today, no less than before, we may seriously question the retributive value of executing a person who has no comprehension of why he has been singled out and stripped of his fundamental right to life. See Note, The Eighth Amendment and the Execution of the Presently Incompetent, 32 Stan. L. Rev. 765, 777, n. 58 (1980). Similarly, the natural abhorrence civilized societies feel at killing one who has no capacity to come to grips with his own conscience or deity is still vivid today. And the intuition that such an execution simply offends humanity is evidently shared across this Nation. Faced with such wide spread evidence of a restriction upon sovereign power, this Court is compelled to conclude that the Eighth Amendment *410 prohibits a State from carrying out a sentence of death upon a prisoner who is insane. Whether its aim be to protect the condemned from fear and pain without comfort of understanding, or to protect the dignity of society itself from the barbarity of exacting mindless vengeance, the restriction finds enforcement in the Eighth Amendment.
III
The Eighth Amendment prohibits the State from inflicting the penalty of death upon a prisoner who is insane. Petitioner's allegation of insanity in his habeas corpus petition, if proved, therefore, would bar his execution. The question before us is whether the District Court was under an obligation to hold an evidentiary hearing on the question of Ford's sanity. In answering that question, we bear in mind that, while the underlying social values encompassed by the Eighth Amendment are rooted in historical traditions, the manner in which our judicial system protects those values is purely a matter of contemporary law. Once a substantive right or restriction is recognized in the Constitution, therefore, its enforcement is in no way confined to the rudimentary process deemed adequate in ages past.
A
In a habeas corpus proceeding, "a federal evidentiary hearing is required unless the state-court trier of fact has after a full hearing reliably found the relevant facts." Townsend v. Sain, 372 U.S. 293, 312-313 (1963). The habeas corpus statute, following this Court's decision in Townsend, provides that, in general, "a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction . . . , shall be presumed to be correct," and an evidentiary hearing not required. 28 U.S. C. § 2254(d). In this case, it is clear that no state court has issued any determination to which that presumption of correctness could be said to attach; indeed, no court played any role in the rejection of petitioner's claim of insanity. Thus, quite simply, *411 Townsend and § 2254 require the District Court to grant a hearing de novo on that question.
But our examination does not stop there. For even when a state court has rendered judgment, a federal court is obliged to hold an evidentiary hearing on habeas corpus if, among other factors, "the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing," § 2254(d)(2); or "the material facts were not adequately developed at the State court hearing," § 2254(d)(3); or "the applicant did not receive a full, fair, and adequate hearing in the State court proceeding." § 2254(d)(6). If federal factfinding is to be avoided, then, in addition to providing a court judgment on the constitutional question, the State must also ensure that its procedures are adequate for the purpose of finding the facts.
B
The adequacy of a state-court procedure under Townsend is largely a function of the circumstances and the interests at stake. In capital proceedings generally, this Court has demanded that factfinding procedures aspire to a heightened standard of reliability. See, e. g., Spaziano v. Florida, 468 U.S. 447, 456 (1984). This especial concern is a natural consequence of the knowledge that execution is the most irremediable and unfathomable of penalties; that death is different. See Woodson v. North Carolina, 428 U.S. 280, 305 (1976) (opinion of Stewart, POWELL, and STEVENS, JJ.).
Although the condemned prisoner does not enjoy the same presumptions accorded a defendant who has yet to be convicted or sentenced, he has not lost the protection of the Constitution altogether; if the Constitution renders the fact or timing of his execution contingent upon establishment of a further fact, then that fact must be determined with the high regard for truth that befits a decision affecting the life or death of a human being. Thus, the ascertainment of a prisoner's sanity as a predicate to lawful execution calls for no less stringent standards than those demanded in any *412 other aspect of a capital proceeding. Indeed, a particularly acute need for guarding against error inheres in a determination that "in the present state of the mental sciences is at best a hazardous guess however conscientious." Solesbee v. Balkcom, 339 U. S., at 23 (Frankfurter, J., dissenting). That need is greater still because the ultimate decision will turn on the finding of a single fact, not on a range of equitable considerations. Cf. Woodson v. North Carolina, supra, at 304. In light of these concerns, the procedures employed in petitioner's case do not fare well.
C
Florida law directs the Governor, when informed that a person under sentence of death may be insane, to stay the execution and appoint a commission of three psychiatrists to examine the prisoner. Fla. Stat. § 922.07 (1985 and Supp. 1986). "The examination of the convicted person shall take place with all three psychiatrists present at the same time." Ibid. After receiving the report of the commission, the Governor must determine whether "the convicted person has the mental capacity to understand the nature of the death penalty and the reasons why it was imposed on him." Ibid. If the Governor finds that the prisoner has that capacity, then a death warrant is issued; if not, then the prisoner is committed to a mental health facility. The procedure is conducted wholly within the executive branch, ex parte, and provides the exclusive means for determining sanity. Ford v. Wainwright, 451 So. 2d, at 475.
Petitioner received the statutory process. The Governor selected three psychiatrists, who together interviewed Ford for a total of 30 minutes, in the presence of eight other people, including Ford's counsel, the State's attorneys, and correctional officials. The Governor's order specifically directed that the attorneys should not participate in the examination in any adversarial manner. This order was consistent with the present Governor's "publicly announced policy *413 of excluding all advocacy on the part of the condemned from the process of determining whether a person under a sentence of death is insane." Goode v. Wainwright, 448 So. 2d 999, 1001 (Fla. 1984).
After submission of the reports of the three examining psychiatrists, reaching conflicting diagnoses but agreeing on the ultimate issue of competency, Ford's counsel attempted to submit to the Governor some other written materials, including the reports of the two other psychiatrists who had examined Ford at greater length, one of whom had concluded that the prisoner was not competent to suffer execution. The Governor's office refused to inform counsel whether the submission would be considered. The Governor subsequently issued his decision in the form of a death warrant. That this most cursory form of procedural review fails to achieve even the minimal degree of reliability required for the protection of any constitutional interest, and thus falls short of adequacy under Townsend, is self-evident.
IV
A
The first deficiency in Florida's procedure lies in its failure to include the prisoner in the truth-seeking process. Notwithstanding this Court's longstanding pronouncement that "[t]he fundamental requisite of due process of law is the opportunity to be heard," Grannis v. Ordean, 234 U.S. 385, 394 (1914), state practice does not permit any material relevant to the ultimate decision to be submitted on behalf of the prisoner facing execution. In all other proceedings leading to the execution of an accused, we have said that the factfinder must "have before it all possible relevant information about the individual defendant whose fate it must determine." Jurek v. Texas, 428 U.S. 262, 276 (1976) (plurality opinion). And we have forbidden States to limit the capital defendant's submission of relevant evidence in mitigation of the sentence. Skipper v. South Carolina, 476 U.S. 1, 8 *414 (1986); Lockett v. Ohio, 438 U.S. 586, 604 (1978) (joint opinion). It would be odd were we now to abandon our insistence upon unfettered presentation of relevant information, before the final fact antecedent to execution has been found.
Rather, consistent with the heightened concern for fairness and accuracy that has characterized our review of the process requisite to the taking of a human life, we believe that any procedure that precludes the prisoner or his counsel from presenting material relevant to his sanity or bars consideration of that material by the factfinder is necessarily inadequate. "[T]he minimum assurance that the life-and-death guess will be a truly informed guess requires respect for the basic ingredient of due process, namely, an opportunity to be allowed to substantiate a claim before it is rejected." Solesbee v. Balkcom, supra, at 23 (Frankfurter, J., dissenting).
We recently had occasion to underscore the value to be derived from a factfinder's consideration of differing psychiatric opinions when resolving contested issues of mental state. In Ake v. Oklahoma, 470 U.S. 68 (1985), we recognized that, because "psychiatrists disagree widely and frequently on what constitutes mental illness [and] on the appropriate diagnosis to be attached to given behavior and symptoms," the factfinder must resolve differences in opinion within the psychiatric profession "on the basis of the evidence offered by each party" when a defendant's sanity is at issue in a criminal trial. Id., at 81. The same holds true after conviction; without any adversarial assistance from the prisoner's representative especially when the psychiatric opinion he proffers is based on much more extensive evaluation than that of the state-appointed commission the factfinder loses the substantial benefit of potentially probative information. The result is a much greater likelihood of an erroneous decision.
*415 B
A related flaw in the Florida procedure is the denial of any opportunity to challenge or impeach the state-appointed psychiatrists' opinions. "[C]ross-examination . . . is beyond any doubt the greatest legal engine ever invented for the discovery of truth." 5 J. Wigmore, Evidence § 1367 (J. Chadbourn rev. 1974). Cross-examination of the psychiatrists, or perhaps a less formal equivalent, would contribute markedly to the process of seeking truth in sanity disputes by bringing to light the bases for each expert's beliefs, the precise factors underlying those beliefs, any history of error or caprice of the examiner, any personal bias with respect to the issue of capital punishment, the expert's degree of certainty about his or her own conclusions, and the precise meaning of ambiguous words used in the report. Without some questioning of the experts concerning their technical conclusions, a factfinder simply cannot be expected to evaluate the various opinions, particularly when they are themselves inconsistent. See Barefoot v. Estelle, 463 U.S. 880, 899 (1983). The failure of the Florida procedure to afford the prisoner's representative any opportunity to clarify or challenge the state experts' opinions or methods creates a significant possibility that the ultimate decision made in reliance on those experts will be distorted.[3]
*416 C
Perhaps the most striking defect in the procedures of Fla. Stat. § 922.07 (1985 and Supp. 1986), as noted earlier, is the State's placement of the decision wholly within the executive branch. Under this procedure, the person who appoints the experts and ultimately decides whether the State will be able to carry out the sentence that it has long sought is the Governor, whose subordinates have been responsible for initiating every stage of the prosecution of the condemned from arrest through sentencing. The commander of the State's corps of prosecutors cannot be said to have the neutrality that is necessary for reliability in the factfinding proceeding.
Historically, delay of execution on account of insanity was not a matter of executive clemency (ex mandato regis) or judicial discretion (ex arbitrio judicis); rather, it was required by law (ex necessitate legis). 1 N. Walker, Crime and Insanity in England 196 (1968). Thus, history affords no better basis than does logic for placing the final determination of a fact, critical to the trigger of a constitutional limitation upon the State's power, in the hands of the State's own chief executive. In no other circumstance of which we are aware is the vindication of a constitutional right entrusted to the unreviewable discretion of an administrative tribunal.
V
A
Having identified various failings of the Florida scheme, we must conclude that the State's procedures for determining sanity are inadequate to preclude federal redetermination of the constitutional issue. We do not here suggest that only a full trial on the issue of sanity will suffice to protect the federal interests; we leave to the State the task of developing appropriate ways to enforce the constitutional restriction *417 upon its execution of sentences.[4] It may be that some high threshold showing on behalf of the prisoner will be found a necessary means to control the number of nonmeritorious or repetitive claims of insanity. Cf. Pate v. Robinson, 383 U.S. 375, 387 (1966) (hearing on competency to stand trial required if "sufficient doubt" of competency exists). Other legitimate pragmatic considerations may also supply the boundaries of the procedural safeguards that feasibly can be provided.
Yet the lodestar of any effort to devise a procedure must be the overriding dual imperative of providing redress for those with substantial claims and of encouraging accuracy in the factfinding determination. The stakes are high, and the "evidence" will always be imprecise. It is all the more important that the adversary presentation of relevant information be as unrestricted as possible. Also essential is that the manner of selecting and using the experts responsible for producing that "evidence" be conducive to the formation of neutral, sound, and professional judgments as to the prisoner's ability to comprehend the nature of the penalty. Fidelity to these principles is the solemn obligation of a civilized society.
B
Today we have explicitly recognized in our law a principle that has long resided there. It is no less abhorrent today than it has been for centuries to exact in penance the life of one whose mental illness prevents him from comprehending the reasons for the penalty or its implications. In light of the *418 clear need for trustworthiness in any factual finding that will prevent or permit the carrying out of an execution, we hold that Fla. Stat. § 922.07 (1985 and Supp. 1986) provides inadequate assurances of accuracy to satisfy the requirements of Townsend v. Sain, 372 U.S. 293 (1963). Having been denied a factfinding procedure "adequate to afford a full and fair hearing" on the critical issue, 28 U.S. C. § 2254(d)(2), petitioner is entitled to an evidentiary hearing in the District Court, de novo, on the question of his competence to be executed. Townsend v. Sain, supra, at 312.
The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
JUSTICE POWELL, concurring in part and concurring in the judgment. | For centuries no jurisdiction has countenanced the execution of the insane, yet this Court has never decided whether the Constitution forbids the practice. Today we keep faith with our common-law heritage in holding that it does. I Alvin Bernard Ford was convicted of murder in 1974 and sentenced to death. There is no suggestion that he was incompetent at the time of his offense, at trial, or at sentencing. *402 In early 1982, however, Ford began to manifest gradual changes in behavior. They began as an occasional peculiar idea or confused perception, but became more serious over time. After reading in the newspaper that the Ku Klux Klan had held a rally in nearby Jacksonville, Florida, Ford developed an obsession focused upon the Klan. His letters to various people reveal endless brooding about his "Klan work," and an increasingly pervasive delusion that he had become the target of a complex conspiracy, involving the Klan and assorted others, designed to force him to commit suicide. He believed that the prison guards, part of the conspiracy, had been killing people and putting the bodies in the concrete enclosures used for beds. Later, he began to believe that his women relatives were being tortured and sexually abused somewhere in the prison. This notion developed into a delusion that the people who were tormenting him at the prison had taken members of Ford's family hostage. The hostage delusion took firm hold and expanded, until Ford was reporting that 135 of his friends and family were being held hostage in the prison, and that only he could help them. By "day 287" of the "hostage crisis," the list of hostages had expanded to include "senators, Senator Kennedy, and many other leaders." App. 53. In a letter to the Attorney General of Florida, written in 1983, Ford appeared to assume authority for ending the "crisis," claiming to have fired a number of prison officials. He began to refer to himself as "Pope John Paul, III," and reported having appointed nine new justices to the Florida Supreme Court. Counsel for Ford asked a psychiatrist who had examined Ford earlier, Dr. Jamal Amin, to continue seeing him and to recommend appropriate treatment. On the basis of roughly 14 months of evaluation, taped conversations between Ford and his attorneys, letters written by Ford, interviews with Ford's acquaintances, and various medical records, Dr. Amin concluded in 1983 that Ford suffered from "a severe, uncontrollable, mental disease which closely resembles `Paranoid *403 Schizophrenia With Suicide Potential' " a "major mental disorder. severe enough to substantially affect Mr. Ford's present ability to assist in the defense of his life." Ford subsequently refused to see Dr. Amin again, believing him to have joined the conspiracy against him, and Ford's counsel sought assistance from Dr. Harold Kaufman, who interviewed Ford in November 1983. Ford told Dr. Kaufman that "I know there is some sort of death penalty, but I'm free to go whenever I want because it would be illegal and the executioner would be executed." When asked if he would be executed, Ford replied: "I can't be executed because of the landmark case. I won. Ford v. State will prevent executions all over." These statements appeared amidst long streams of seemingly unrelated thoughts in rapid succession. Dr. Kaufman concluded that Ford had no understanding of why he was being executed, made no connection between the homicide of which he had been convicted and the death penalty, and indeed sincerely believed that he would not be executed because he owned the prisons and could control the Governor through mind waves. Dr. Kaufman found that there was "no reasonable possibility that Mr. Ford was dissembling, malingering or otherwise putting on a performance" The following month, in an interview with his attorneys, Ford regressed further into nearly complete incomprehensibility, speaking only in a code characterized by intermittent use of the word "one," making statements such as "Hands one, face one. Mafia one. God one, father one, Pope one. Pope one. Leader one." Counsel for Ford invoked the procedures of Florida law governing the determination of competency of a condemned inmate, Following the procedures set forth in the statute, the Governor of Florida appointed a panel of three psychiatrists to evaluate whether, under 922.07(2), Ford had "the mental capacity to understand the nature of the death penalty and the reasons why it was imposed *404 upon him." At a single meeting, the three psychiatrists together interviewed Ford for approximately 30 minutes. Each doctor then filed a separate two- or three-page report with the Governor, to whom the statute delegates the final decision. One doctor concluded that Ford suffered from "psychosis with paranoia" but had "enough cognitive functioning to understand the nature and the effects of the death penalty, and why it is to be imposed on him." App. 103. Another found that, although Ford was "psychotic," he did "know fully what can happen to him." The third concluded that Ford had a "severe adaptational disorder," but did "comprehend his total situation including being sentenced to death, and all of the implications of that penalty." He believed that Ford's disorder, "although severe, seem[ed] contrived and recently learned." Thus, the interview produced three different diagnoses, but accord on the question of sanity as defined by state law. The Governor's decision was announced on April 30, when, without explanation or statement, he signed a death warrant for Ford's execution. Ford's attorneys unsuccessfully sought a hearing in state court to determine anew Ford's competency to suffer execution. Counsel then filed a petition for habeas corpus in the United States District Court for the Southern District of Florida, seeking an evidentiary hearing on the question of Ford's sanity, proffering the conflicting findings of the Governor-appointed commission and subsequent challenges to their methods by other psychiatrists. The District Court denied the petition without a hearing. The Court of Appeals granted a certificate of probable cause and stayed Ford's execution, and we rejected the State's effort to vacate the stay of execution. The Court of Appeals then addressed the merits of Ford's claim and a divided panel affirmed the District *405 Court's denial of the writ. This Court granted Ford's petition for certiorari in order to resolve the important issue whether the Eighth Amendment prohibits the execution of the insane and, if so, whether the District Court should have held a hearing on petitioner's claim. II Since this Court last had occasion to consider the infliction of the death penalty upon the insane, our interpretations of the Due Process Clause and the Eighth Amendment have evolved substantially. In a condemned prisoner claimed a due process right to a judicial determination of his sanity, yet the Court did not consider the possible existence of a right under the Eighth Amendment, which had not yet been applied to the States. The sole question the Court addressed was whether Georgia's procedure for ascertaining sanity adequately effectuated that State's own policy of sparing the insane from execution. See also Caritativo v. California, 357 U. S> 549 ; United States ex rel. ; ; Now that the Eighth Amendment has been recognized to affect significantly both the procedural and the substantive aspects of the death penalty, the question of executing the insane takes on a wholly different complexion. The adequacy of the procedures chosen by a State to determine sanity, therefore, will depend upon an issue that this Court has never addressed: whether the Constitution places a substantive restriction on the State's power to take the life of an insane prisoner. There is now little room for doubt that the Eighth Amendment's ban on cruel and unusual punishment embraces, at a minimum, those modes or acts of punishment that had been considered cruel and unusual at the time that the Bill of Rights was adopted. See ; ; ; "Although the Framers may have intended the Eighth Amendment to go beyond the scope of its English counterpart, their use of the language of the English Bill of Rights is convincing proof that they intended to provide at least the same protection." Moreover, the Eighth Amendment's proscriptions are not limited to those practices condemned by the common law in 1789. See Not bound by the sparing humanitarian concessions of our forebears, the Amendment also recognizes the "evolving standards of decency that mark the progress of a maturing society." In addition to considering the barbarous methods generally outlawed in the 18th century, therefore, this Court takes into account objective evidence of contemporary values before determining whether a particular punishment comports with the fundamental human dignity that the Amendment protects. See A We begin, then, with the common law. The bar against executing a prisoner who has lost his sanity bears impressive historical credentials; the practice consistently has been branded "savage and inhuman." 4 W. Blackstone, Commentaries *24-*25 (hereinafter Blackstone). Blackstone explained: "[I]diots and lunatics are not chargeable for their own acts, if committed when under these incapacities: no, not even for treason itself. Also, if a man in his sound memory commits a capital offence, and before arraignment for it, he becomes mad, he ought not to be arraigned for *407 it: because he is not able to plead to it with that advice and caution that he ought. And if, after he has pleaded, the prisoner becomes mad, he shall not be tried: for how can he make his defence? If, after he be tried and found guilty, he loses his senses before judgment, judgment shall not be pronounced; and if, after judgment, he becomes of nonsane memory, execution shall be stayed: for peradventure, says the humanity of the English law, had the prisoner been of sound memory, he might have alleged something in stay of judgment or execution." Sir Edward Coke had earlier expressed the same view of the common law of England: "[B]y intendment of Law the execution of the offender is for example, but so it is not when a mad man is executed, but should be a miserable spectacle, both against Law, and of extream inhumanity and cruelty, and can be no example to others." 3 E. Coke, Institutes 6 (6th ed. 1680) (hereinafter Coke). Other recorders of the common law concurred. See 1 M. Hale, Pleas of the Crown 35 (1736) (hereinafter Hale); 1 W. Hawkins, Pleas of the Crown 2 (7th ed. 1795) (hereinafter Hawkins); Hawles, Remarks on the Trial of Mr. Charles Bateman, 11 How. St. Tr. 474, 477 (1685) (hereinafter Hawles). As is often true of common-law principles, see O. Holmes, The Common Law 5 (1881), the reasons for the rule are less sure and less uniform than the rule itself. One explanation is that the execution of an insane person simply offends humanity, Coke 6; another, that it provides no example to others and thus contributes nothing to whatever deterrence value is intended to be served by capital punishment. Other commentators postulate religious underpinnings: that it is uncharitable to dispatch an offender "into another world, when he is not of a capacity to fit himself for it," Hawles 477. It is also said that execution serves no purpose in these cases because madness is its own punishment: furiosus *408 solo furore punitur. Blackstone *395. More recent commentators opine that the community's quest for "retribution" the need to offset a criminal act by a punishment of equivalent "moral quality" is not served by execution of an insane person, which has a "lesser value" than that of the crime for which he is to be punished. Hazard & Louisell, Death, the State, and the Insane: Stay of Execution, Unanimity of rationale, therefore, we do not find. "But whatever the reason of the law is, it is plain the law is so." Hawles 477. We know of virtually no authority condoning the execution of the insane at English common law.[1] Further indications suggest that this solid proscription was carried to America, where it was early observed that "the judge is bound" to stay the execution upon insanity of the prisoner. 1 J. Chitty, A Practical Treatise on the Criminal Law *761; see 1 F. Wharton, A Treatise on Criminal Law 59 (8th ed. 1880). B This ancestral legacy has not outlived its time. Today, no State in the Union permits the execution of the insane.[2] It *409 is clear that the ancient and humane limitation upon the State's ability to execute its sentences has as firm a hold upon the jurisprudence of today as it had centuries ago in England. The various reasons put forth in support of the common-law restriction have no less logical, moral, and practical force than they did when first voiced. For today, no less than before, we may seriously question the retributive value of executing a person who has no comprehension of why he has been singled out and stripped of his fundamental right to life. See Note, The Eighth Amendment and the Execution of the Presently Incompetent, Similarly, the natural abhorrence civilized societies feel at killing one who has no capacity to come to grips with his own conscience or deity is still vivid today. And the intuition that such an execution simply offends humanity is evidently shared across this Nation. Faced with such wide spread evidence of a restriction upon sovereign power, this Court is compelled to conclude that the Eighth Amendment *410 prohibits a State from carrying out a sentence of death upon a prisoner who is insane. Whether its aim be to protect the condemned from fear and pain without comfort of understanding, or to protect the dignity of society itself from the barbarity of exacting mindless vengeance, the restriction finds enforcement in the Eighth Amendment. III The Eighth Amendment prohibits the State from inflicting the penalty of death upon a prisoner who is insane. Petitioner's allegation of insanity in his habeas corpus petition, if proved, therefore, would bar his execution. The question before us is whether the District Court was under an obligation to hold an evidentiary hearing on the question of Ford's sanity. In answering that question, we bear in mind that, while the underlying social values encompassed by the Eighth Amendment are rooted in historical traditions, the manner in which our judicial system protects those values is purely a matter of contemporary law. Once a substantive right or restriction is recognized in the Constitution, therefore, its enforcement is in no way confined to the rudimentary process deemed adequate in ages past. A In a habeas corpus proceeding, "a federal evidentiary hearing is required unless the state-court trier of fact has after a full hearing reliably found the relevant facts." The habeas corpus statute, following this Court's decision in Townsend, provides that, in general, "a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction shall be presumed to be correct," and an evidentiary hearing not required. 28 U.S. C. 2254(d). In this case, it is clear that no state court has issued any determination to which that presumption of correctness could be said to attach; indeed, no court played any role in the rejection of petitioner's claim of insanity. Thus, quite simply, *411 Townsend and 2254 require the District Court to grant a hearing de novo on that question. But our examination does not stop there. For even when a state court has rendered judgment, a federal court is obliged to hold an evidentiary hearing on habeas corpus if, among other factors, "the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing," 2254(d)(2); or "the material facts were not adequately developed at the State court hearing," 2254(d)(3); or "the applicant did not receive a full, fair, and adequate hearing in the State court proceeding." 2254(d)(6). If federal factfinding is to be avoided, then, in addition to providing a court judgment on the constitutional question, the State must also ensure that its procedures are adequate for the purpose of finding the facts. B The adequacy of a state-court procedure under Townsend is largely a function of the circumstances and the interests at stake. In capital proceedings generally, this Court has demanded that factfinding procedures aspire to a heightened standard of reliability. See, e. g., This especial concern is a natural consequence of the knowledge that execution is the most irremediable and unfathomable of penalties; that death is different. See Although the condemned prisoner does not enjoy the same presumptions accorded a defendant who has yet to be convicted or sentenced, he has not lost the protection of the Constitution altogether; if the Constitution renders the fact or timing of his execution contingent upon establishment of a further fact, then that fact must be determined with the high regard for truth that befits a decision affecting the life or death of a human being. Thus, the ascertainment of a prisoner's sanity as a predicate to lawful execution calls for no less stringent standards than those demanded in any *412 other aspect of a capital proceeding. Indeed, a particularly acute need for guarding against error inheres in a determination that "in the present state of the mental sciences is at best a hazardous guess however conscientious." That need is greater still because the ultimate decision will turn on the finding of a single fact, not on a range of equitable considerations. Cf. In light of these concerns, the procedures employed in petitioner's case do not fare well. C Florida law directs the Governor, when informed that a person under sentence of death may be insane, to stay the execution and appoint a commission of three psychiatrists to examine the prisoner. "The examination of the convicted person shall take place with all three psychiatrists present at the same time." After receiving the report of the commission, the Governor must determine whether "the convicted person has the mental capacity to understand the nature of the death penalty and the reasons why it was imposed on him." If the Governor finds that the prisoner has that capacity, then a death warrant is issued; if not, then the prisoner is committed to a mental health facility. The procedure is conducted wholly within the executive branch, ex parte, and provides the exclusive means for determining sanity. 451 So. 2d, at Petitioner received the statutory process. The Governor selected three psychiatrists, who together interviewed Ford for a total of 30 minutes, in the presence of eight other people, including Ford's counsel, the State's attorneys, and correctional officials. The Governor's order specifically directed that the attorneys should not participate in the examination in any adversarial manner. This order was consistent with the present Governor's "publicly announced policy *413 of excluding all advocacy on the part of the condemned from the process of determining whether a person under a sentence of death is insane." Goode v. After submission of the reports of the three examining psychiatrists, reaching conflicting diagnoses but agreeing on the ultimate issue of competency, Ford's counsel attempted to submit to the Governor some other written materials, including the reports of the two other psychiatrists who had examined Ford at greater length, one of whom had concluded that the prisoner was not competent to suffer execution. The Governor's office refused to inform counsel whether the submission would be considered. The Governor subsequently issued his decision in the form of a death warrant. That this most cursory form of procedural review fails to achieve even the minimal degree of reliability required for the protection of any constitutional interest, and thus falls short of adequacy under Townsend, is self-evident. IV A The first deficiency in Florida's procedure lies in its failure to include the prisoner in the truth-seeking process. Notwithstanding this Court's longstanding pronouncement that "[t]he fundamental requisite of due process of law is the opportunity to be heard," state practice does not permit any material relevant to the ultimate decision to be submitted on behalf of the prisoner facing execution. In all other proceedings leading to the execution of an accused, we have said that the factfinder must "have before it all possible relevant information about the individual defendant whose fate it must determine." And we have forbidden States to limit the capital defendant's submission of relevant evidence in mitigation of the sentence. Skipper v. South ; It would be odd were we now to abandon our insistence upon unfettered presentation of relevant information, before the final fact antecedent to execution has been found. Rather, consistent with the heightened concern for fairness and accuracy that has characterized our review of the process requisite to the taking of a human life, we believe that any procedure that precludes the prisoner or his counsel from presenting material relevant to his sanity or bars consideration of that material by the factfinder is necessarily inadequate. "[T]he minimum assurance that the life-and-death guess will be a truly informed guess requires respect for the basic ingredient of due process, namely, an opportunity to be allowed to substantiate a claim before it is rejected." We recently had occasion to underscore the value to be derived from a factfinder's consideration of differing psychiatric opinions when resolving contested issues of mental state. In we recognized that, because "psychiatrists disagree widely and frequently on what constitutes mental illness [and] on the appropriate diagnosis to be attached to given behavior and symptoms," the factfinder must resolve differences in opinion within the psychiatric profession "on the basis of the evidence offered by each party" when a defendant's sanity is at issue in a criminal trial. The same holds true after conviction; without any adversarial assistance from the prisoner's representative especially when the psychiatric opinion he proffers is based on much more extensive evaluation than that of the state-appointed commission the factfinder loses the substantial benefit of potentially probative information. The result is a much greater likelihood of an erroneous decision. *415 B A related flaw in the Florida procedure is the denial of any opportunity to challenge or impeach the state-appointed psychiatrists' opinions. "[C]ross-examination is beyond any doubt the greatest legal engine ever invented for the discovery of truth." 5 J. Wigmore, Evidence 1367 (J. Chadbourn rev. 1974). Cross-examination of the psychiatrists, or perhaps a less formal equivalent, would contribute markedly to the process of seeking truth in sanity disputes by bringing to light the bases for each expert's beliefs, the precise factors underlying those beliefs, any history of error or caprice of the examiner, any personal bias with respect to the issue of capital punishment, the expert's degree of certainty about his or her own conclusions, and the precise meaning of ambiguous words used in the report. Without some questioning of the experts concerning their technical conclusions, a factfinder simply cannot be expected to evaluate the various opinions, particularly when they are themselves inconsistent. See The failure of the Florida procedure to afford the prisoner's representative any opportunity to clarify or challenge the state experts' opinions or methods creates a significant possibility that the ultimate decision made in reliance on those experts will be distorted.[3] *416 C Perhaps the most striking defect in the procedures of as noted earlier, is the State's placement of the decision wholly within the executive branch. Under this procedure, the person who appoints the experts and ultimately decides whether the State will be able to carry out the sentence that it has long sought is the Governor, whose subordinates have been responsible for initiating every stage of the prosecution of the condemned from arrest through sentencing. The commander of the State's corps of prosecutors cannot be said to have the neutrality that is necessary for reliability in the factfinding proceeding. Historically, delay of execution on account of insanity was not a matter of executive clemency (ex mandato regis) or judicial discretion (ex arbitrio judicis); rather, it was required by law (ex necessitate legis). 1 N. Walker, Crime and Insanity in England 196 (1968). Thus, history affords no better basis than does logic for placing the final determination of a fact, critical to the trigger of a constitutional limitation upon the State's power, in the hands of the State's own chief executive. In no other circumstance of which we are aware is the vindication of a constitutional right entrusted to the unreviewable discretion of an administrative tribunal. V A Having identified various failings of the Florida scheme, we must conclude that the State's procedures for determining sanity are inadequate to preclude federal redetermination of the constitutional issue. We do not here suggest that only a full trial on the issue of sanity will suffice to protect the federal interests; we leave to the State the task of developing appropriate ways to enforce the constitutional restriction *417 upon its execution of sentences.[4] It may be that some high threshold showing on behalf of the prisoner will be found a necessary means to control the number of nonmeritorious or repetitive claims of insanity. Cf. Other legitimate pragmatic considerations may also supply the boundaries of the procedural safeguards that feasibly can be provided. Yet the lodestar of any effort to devise a procedure must be the overriding dual imperative of providing redress for those with substantial claims and of encouraging accuracy in the factfinding determination. The stakes are high, and the "evidence" will always be imprecise. It is all the more important that the adversary presentation of relevant information be as unrestricted as possible. Also essential is that the manner of selecting and using the experts responsible for producing that "evidence" be conducive to the formation of neutral, sound, and professional judgments as to the prisoner's ability to comprehend the nature of the penalty. Fidelity to these principles is the solemn obligation of a civilized society. B Today we have explicitly recognized in our law a principle that has long resided there. It is no less abhorrent today than it has been for centuries to exact in penance the life of one whose mental illness prevents him from comprehending the reasons for the penalty or its implications. In light of the *418 clear need for trustworthiness in any factual finding that will prevent or permit the carrying out of an execution, we hold that provides inadequate assurances of accuracy to satisfy the requirements of Having been denied a factfinding procedure "adequate to afford a full and fair hearing" on the critical issue, 28 U.S. C. 2254(d)(2), petitioner is entitled to an evidentiary hearing in the District Court, de novo, on the question of his competence to be executed. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. JUSTICE POWELL, concurring in part and concurring in the judgment. |
Justice Breyer | concurring | false | Miller v. Alabama | 2012-06-25T00:00:00 | null | https://www.courtlistener.com/opinion/803271/miller-v-alabama/ | https://www.courtlistener.com/api/rest/v3/clusters/803271/ | 2,012 | null | null | null | null | I join the Court’s opinion in full. I add that, if the State
continues to seek a sentence of life without the possibil-
ity of parole for Kuntrell Jackson, there will have to be a
determination whether Jackson “kill[ed] or intend[ed] to
kill” the robbery victim. Graham v. Florida, 560 U.S. ___,
___ (2010) (slip op., at 18). In my view, without such a
finding, the Eighth Amendment as interpreted in Graham
forbids sentencing Jackson to such a sentence, regardless
of whether its application is mandatory or discretionary
under state law.
In Graham we said that “when compared to an adult
murderer, a juvenile offender who did not kill or intend to
kill has a twice diminished moral culpability.” Ibid. (em-
phasis added). For one thing, “compared to adults, juve-
niles have a lack of maturity and an underdeveloped sense
2 MILLER v. ALABAMA
BREYER, J., concurring
of responsibility; they are more vulnerable or susceptible
to negative influences and outside pressures, including
peer pressure; and their characters are not as well
formed.” Id., at ___ (slip op., at 17) (internal quotation
marks omitted). See also ibid. (“[P]sychology and brain
science continue to show fundamental differences between
juvenile and adult minds” making their actions “less likely
to be evidence of ‘irretrievably depraved character’ than
are the actions of adults” (quoting Roper v. Simmons, 543
U.S. 551, 570 (2005))); ante, at 8–9. For another thing,
Graham recognized that lack of intent normally dimin-
ishes the “moral culpability” that attaches to the crime in
question, making those that do not intend to kill “categori-
cally less deserving of the most serious forms of punish-
ment than are murderers.” 560 U. S., at ___ (slip op., at
18) (citing Kennedy v. Louisiana, 554 U.S. 407, 434–435
(2008); Enmund v. Florida, 458 U.S. 782 (1982); Tison v.
Arizona, 481 U.S. 137 (1987)). And we concluded that,
because of this “twice diminished moral culpability,” the
Eighth Amendment forbids the imposition upon juveniles
of a sentence of life without parole for nonhomicide cases.
Graham, supra, at ___, ___ (slip op., at 18, 32).
Given Graham’s reasoning, the kinds of homicide that
can subject a juvenile offender to life without parole must
exclude instances where the juvenile himself neither kills
nor intends to kill the victim. Quite simply, if the juvenile
either kills or intends to kill the victim, he lacks “twice
diminished” responsibility. But where the juvenile neither
kills nor intends to kill, both features emphasized in Gra-
ham as extenuating apply. The dissent itself here would
permit life without parole for “juveniles who commit the
worst types of murder,” post, at 7 (opinion of ROBERTS,
C. J.), but that phrase does not readily fit the culpability of
one who did not himself kill or intend to kill.
I recognize that in the context of felony-murder cases,
the question of intent is a complicated one. The felony-
Cite as: 567 U. S. ____ (2012) 3
BREYER, J., concurring
murder doctrine traditionally attributes death caused in
the course of a felony to all participants who intended to
commit the felony, regardless of whether they killed or
intended to kill. See 2 W. LaFave, Substantive Criminal
Law §§14.5(a) and (c) (2d ed. 2003). This rule has been
based on the idea of “transferred intent”; the defendant’s
intent to commit the felony satisfies the intent to kill
required for murder. See S. Kadish, S. Schulhofer, & C.
Streiker, Criminal Law and Its Processes 439 (8th ed.
2007); 2 C. Torcia, Wharton’s Criminal Law §147 (15th ed.
1994).
But in my opinion, this type of “transferred intent” is
not sufficient to satisfy the intent to murder that could
subject a juvenile to a sentence of life without parole. As
an initial matter, this Court has made clear that this
artificially constructed kind of intent does not count as
intent for purposes of the Eighth Amendment. We do not
rely on transferred intent in determining if an adult may
receive the death penalty. Thus, the Constitution forbids
imposing capital punishment upon an aider and abettor in
a robbery, where that individual did not intend to kill and
simply was “in the car by the side of the road . . . , waiting
to help the robbers escape.” Enmund, supra, at 788. Cf.
Tison, supra, at 157–158 (capital punishment permissi-
ble for aider and abettor where kidnaping led to death
because he was “actively involved” in every aspect of the
kidnaping and his behavior showed “a reckless disregard
for human life”). Given Graham, this holding applies to
juvenile sentences of life without parole a fortiori. See
ante, at 12–13. Indeed, even juveniles who meet the Tison
standard of “reckless disregard” may not be eligible for life
without parole. Rather, Graham dictates a clear rule: The
only juveniles who may constitutionally be sentenced to
life without parole are those convicted of homicide offenses
who “kill or intend to kill.” 560 U. S., at ___ (slip op.,
at 18).
4 MILLER v. ALABAMA
BREYER, J., concurring
Moreover, regardless of our law with respect to adults,
there is no basis for imposing a sentence of life without
parole upon a juvenile who did not himself kill or intend to
kill. At base, the theory of transferring a defendant’s
intent is premised on the idea that one engaged in a dan-
gerous felony should understand the risk that the victim
of the felony could be killed, even by a confederate. See 2
LaFave, supra, §14.5(c). Yet the ability to consider the
full consequences of a course of action and to adjust one’s
conduct accordingly is precisely what we know juveniles
lack capacity to do effectively. Ante, at 8–9. Justice Frank-
furter cautioned, “Legal theories and their phrasing in
other cases readily lead to fallacious reasoning if uncrit-
ically transferred to a determination of a State’s duty to-
ward children.” May v. Anderson, 345 U.S. 528, 536
(1953) (concurring opinion). To apply the doctrine of
transferred intent here, where the juvenile did not kill, to
sentence a juvenile to life without parole would involve
such “fallacious reasoning.” Ibid.
This is, as far as I can tell, precisely the situation pres-
ent in Kuntrell Jackson’s case. Jackson simply went
along with older boys to rob a video store. On the way, he
became aware that a confederate had a gun. He initially
stayed outside the store, and went in briefly, saying some-
thing like “We ain’t playin’ ” or “ ‘I thought you all was
playin,’ ” before an older confederate shot and killed the
store clerk. Jackson v. State, 359 Ark. 87, 91, 194 S.W.3d
757, 760 (2004). Crucially, the jury found him guilty of
first-degree murder under a statute that permitted them
to convict if, Jackson “attempted to commit or committed
an aggravated robbery, and, in the course of that of-
fense, he, or an accomplice, caused [the clerk’s] death
under circumstance manifesting extreme indifference to the
value of human life.” Ibid. See Ark. Code Ann. §5–10–
101(a)(1) (1997); ante, at 15. Thus, to be found guilty,
Jackson did not need to kill the clerk (it is conceded he did
Cite as: 567 U. S. ____ (2012) 5
BREYER, J., concurring
not), nor did he need to have intent to kill or even “ex-
treme indifference.” As long as one of the teenage accom-
plices in the robbery acted with extreme indifference to
the value of human life, Jackson could be convicted of
capital murder. Ibid.
The upshot is that Jackson, who did not kill the clerk,
might not have intended to do so either. See Jackson v.
Norris, 2011 Ark. 49, at 10, ___ S. W. 3d ___ (Danielson,
J., dissenting) (“[A]ny evidence of [Jackson’s] intent to kill
was severely lacking”). In that case, the Eighth Amend-
ment simply forbids imposition of a life term without the
possibility of parole. If, on remand, however, there is a
finding that Jackson did intend to cause the clerk’s death,
the question remains open whether the Eighth Amend-
ment prohibits the imposition of life without parole upon a
juvenile in those circumstances as well. Ante, at 17.
Cite as: 567 U. S. ____ (2012) 1
ROBERTS, C. J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 10–9646 and 10–9647
_________________
EVAN MILLER, PETITIONER
10–9646 v.
ALABAMA
ON WRIT OF CERTIORARI TO THE COURT OF CRIMINAL
APPEALS OF ALABAMA
KUNTRELL JACKSON, PETITIONER
10–9647 v. | I join the Court’s opinion in full. I add that, if the State continues to seek a sentence of life without the possibil- ity of parole for Kuntrell Jackson, there will have to be a determination whether Jackson “kill[ed] or intend[ed] to kill” the robbery victim. v. Florida, 560 U.S. (2010) (slip op., at 18). In my view, without such a finding, the Eighth Amendment as interpreted in forbids sentencing Jackson to such a sentence, regardless of whether its application is mandatory or discretionary under state law. In we said that “when compared to an adult murderer, a juvenile offender who did not kill or intend to kill has a twice diminished moral culpability.” (em- phasis added). For one thing, “compared to adults, juve- niles have a lack of maturity and an underdeveloped sense 2 MILLER v. ALABAMA BREYER, J., concurring of responsibility; they are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure; and their characters are not as well formed.” at (slip op., at 17) (internal quotation marks omitted). See also (“[P]sychology and brain science continue to show fundamental differences between juvenile and adult minds” making their actions “less likely to be evidence of ‘irretrievably depraved character’ than are the actions of adults” (quoting Roper v. Simmons, 543 U.S. 551, 570 (2005))); ante, at 8–9. For another thing, recognized that lack of intent normally dimin- ishes the “moral culpability” that attaches to the crime in question, making those that do not intend to kill “categori- cally less deserving of the most serious forms of punish- ment than are murderers.” 560 U. S., at (slip op., at 18) (citing 434–435 (2008); ; v. Arizona, ). And we concluded that, because of this “twice diminished moral culpability,” the Eighth Amendment forbids the imposition upon juveniles of a sentence of life without parole for nonhomicide cases. at (slip op., at 18, 32). Given ’s reasoning, the kinds of homicide that can subject a juvenile offender to life without parole must exclude instances where the juvenile himself neither kills nor intends to kill the victim. Quite simply, if the juvenile either kills or intends to kill the victim, he lacks “twice diminished” responsibility. But where the juvenile neither kills nor intends to kill, both features emphasized in Gra- ham as extenuating apply. The dissent itself here would permit life without parole for “juveniles who commit the worst types of murder,” post, at 7 (opinion of ROBERTS, C. J.), but that phrase does not readily fit the culpability of one who did not himself kill or intend to kill. I recognize that in the context of felony-murder cases, the question of intent is a complicated one. The felony- Cite as: 567 U. S. (2012) 3 BREYER, J., concurring murder doctrine traditionally attributes death caused in the course of a felony to all participants who intended to commit the felony, regardless of whether they killed or intended to kill. See 2 W. Substantive Criminal Law and (c) (2d ed. 2003). This rule has been based on the idea of “transferred intent”; the defendant’s intent to commit the felony satisfies the intent to kill required for murder. See S. Kadish, S. Schulhofer, & C. Streiker, Criminal Law and Its Processes 439 (8th ed. 2007); 2 C. Torcia, Wharton’s Criminal Law (15th ed. 1994). But in my opinion, this type of “transferred intent” is not sufficient to satisfy the intent to murder that could subject a juvenile to a sentence of life without parole. As an initial matter, this Court has made clear that this artificially constructed kind of intent does not count as intent for purposes of the Eighth Amendment. We do not rely on transferred intent in determining if an adult may receive the death penalty. Thus, the Constitution forbids imposing capital punishment upon an aider and abettor in a robbery, where that individual did not intend to kill and simply was “in the car by the side of the road waiting to help the robbers escape.” Cf. at 157–158 (capital punishment permissi- ble for aider and abettor where kidnaping led to death because he was “actively involved” in every aspect of the kidnaping and his behavior showed “a reckless disregard for human life”). Given this holding applies to juvenile sentences of life without parole a fortiori. See ante, at 12–13. Indeed, even juveniles who meet the standard of “reckless disregard” may not be eligible for life without parole. Rather, dictates a clear rule: The only juveniles who may constitutionally be sentenced to life without parole are those convicted of homicide offenses who “kill or intend to kill.” 560 U. S., at (slip op., at 18). 4 MILLER v. ALABAMA BREYER, J., concurring Moreover, regardless of our law with respect to adults, there is no basis for imposing a sentence of life without parole upon a juvenile who did not himself kill or intend to kill. At base, the theory of transferring a defendant’s intent is premised on the idea that one engaged in a dan- gerous felony should understand the risk that the victim of the felony could be killed, even by a confederate. See 2 Yet the ability to consider the full consequences of a course of action and to adjust one’s conduct accordingly is precisely what we know juveniles lack capacity to do effectively. Ante, at 8–9. Justice Frank- furter cautioned, “Legal theories and their phrasing in other cases readily lead to fallacious reasoning if uncrit- ically transferred to a determination of a State’s duty to- ward children.” (1953) (concurring opinion). To apply the doctrine of transferred intent here, where the juvenile did not kill, to sentence a juvenile to life without parole would involve such “fallacious reasoning.” This is, as far as I can tell, precisely the situation pres- ent in Kuntrell Jackson’s case. Jackson simply went along with older boys to rob a video store. On the way, he became aware that a confederate had a gun. He initially stayed outside the store, and went in briefly, saying some- thing like “We ain’t playin’ ” or “ ‘I thought you all was playin,’ ” before an older confederate shot and killed the store clerk. 194 S.W.3d 757, 760 (2004). Crucially, the jury found him guilty of first-degree murder under a statute that permitted them to convict if, Jackson “attempted to commit or committed an aggravated robbery, and, in the course of that of- fense, he, or an accomplice, caused [the clerk’s] death under circumstance manifesting extreme indifference to the value of human life.” See –10– 101(a)(1) (1997); ante, at 15. Thus, to be found guilty, Jackson did not need to kill the clerk (it is conceded he did Cite as: 567 U. S. (2012) 5 BREYER, J., concurring not), nor did he need to have intent to kill or even “ex- treme indifference.” As long as one of the teenage accom- plices in the robbery acted with extreme indifference to the value of human life, Jackson could be convicted of capital murder. The upshot is that Jackson, who did not kill the clerk, might not have intended to do so either. See Jackson v. Norris, S. W. 3d (Danielson, J., dissenting) (“[A]ny evidence of [Jackson’s] intent to kill was severely lacking”). In that case, the Eighth Amend- ment simply forbids imposition of a life term without the possibility of parole. If, on remand, however, there is a finding that Jackson did intend to cause the clerk’s death, the question remains open whether the Eighth Amend- ment prohibits the imposition of life without parole upon a juvenile in those circumstances as well. Ante, at 17. Cite as: 567 U. S. (2012) 1 ROBERTS, C. J., dissenting SUPREME COURT OF THE UNITED STATES Nos. 10–9646 and 10–9647 EVAN MILLER, PETITIONER 10–9646 v. ALABAMA ON WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF ALABAMA KUNTRELL JACKSON, PETITIONER 10–9647 v. |
Justice O'Connor | dissenting | true | Medellin v. Dretke | 2005-05-23T00:00:00 | null | https://www.courtlistener.com/opinion/142898/medellin-v-dretke/ | https://www.courtlistener.com/api/rest/v3/clusters/142898/ | 2,005 | 2004-050 | 1 | 5 | 4 | José Ernesto Medellín offered proof to the Court of Appeals that reasonable jurists would find debatable or wrong the District Court's disposition of his claim that Texas violated his rights under the Vienna Convention on Consular Relations and that he is thereby entitled to review and reconsideration of his conviction and sentence. Three specific issues deserve further consideration: (1) whether the International Court of Justice's judgment in Medellín's favor, Case *673 Concerning Avena and Other Mexican Nationals (Mex. v. U. S.), 2004 I. C. J. No. 128 (Judgment of Mar. 31), is binding on American courts; (2) whether Article 36(1)(b) of the Convention creates a judicially enforceable individual right; and (3) whether Article 36(2) of the Convention sometimes requires state procedural default rules to be set aside so that the treaty can be given "full effect." Accordingly, I would vacate the denial of a certificate of appealability and remand for resolution of these issues.
The Court dismisses the writ (and terminates federal proceedings) on the basis of speculation: Medellín might obtain relief in new state court proceedings because of the President's recent memorandum about whose constitutionality the Court remains rightfully agnostic, or he might be unable to secure ultimate relief in federal court because of questions about whose resolution the Court is likewise, rightfully, undecided. These tentative predictions are not, in my view, reason enough to avoid questions that are as compelling now as they were when we granted a writ of certiorari, and that remain properly before this Court. It seems to me unsound to avoid questions of national importance when they are bound to recur. I respectfully dissent.
I
Article 36 of the Vienna Convention on Consular Relations guarantees open channels of communication between detained foreign nationals and their consulates in signatory countries:
"[I]f he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities *674 without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph." Vienna Convention on Consular Relations, Art. 36(1)(b), Apr. 24, 1963, [1970] 21 U. S. T. 77, 101, T. I. A. S. No. 6820.
Presently 167 nations are party to the Vienna Convention, including our immediate neighbors to the north and south. Multilateral Treaties Deposited with the Secretary-General United Nations, N. Y., http://untreaty.un.org/English/bible/englishinternetbible/partI/chapterIII/treaty31.asp (all Internet materials as visited May 19, 2005, and available in Clerk of Court's case file).
In this country, the individual States' (often confessed) noncompliance with the treaty has been a vexing problem. See, e. g., United States v. Emuegbunam, 268 F.3d 377, 391 (CA6 2001) (discussing cases about Vienna Convention violations). It has three times been the subject of proceedings in the International Court of Justice (ICJ). See Case Concerning Vienna Convention on Consular Relations (Para. v. U. S.), 1998 I. C. J. 426 (Order of Nov. 10); LaGrand Case (F. R. G. v. U. S.), 2001 I. C. J. 466 (Judgment of June 27); Avena, supra. The problem may have considerable ramifications, because foreign nationals are regularly subject to state criminal justice systems. For example, in 2003, over 56,000 noncitizens were held in state prisons. Noncitizens accounted for over 10% of the prison populations in California, New York, and Arizona. U. S. Dept. of Justice, Bureau of Justice Statistics Bull., p. 5 (rev. July 14, 2004), Prison and Jail Inmates at Midyear 2003, http://www.ojp.usdoj.gov/bjs/pub/pdf/pjim03.pdf.
Noncompliance with our treaty obligations is especially worrisome in capital cases. As of February 2005, 119 non-citizens from 31 nations were on state death row. Foreign Nationals and the Death Penalty in the United States, Reported Foreign Nationals Under Sentence of Death in the U. S., http://www.deathpenaltyinfo.org/article.php?did=198& *675 scid=31. In Avena, the ICJ determined that the United States had breached its obligation to inform 51 Mexican nationals, all sentenced to death in this country, of their right to consular notification. Medellín is just one of them. 2004 I. C. J. No. 128, ¶ 106. His case thus presents, and the Court in turn avoids, questions that will inevitably recur.
José Ernesto Medellín told the officers who arrested him in Texas that he was born in Laredo, Mexico. App. JA15. He also told the Harris County Pretrial Services that he is not an American citizen. App. to Pet. for Cert. 165a. Nonetheless, Medellín was arrested, detained, tried, convicted, and sentenced to death without ever being informed that he could contact the Mexican consul. Mexican consular authorities only became aware of Medellín's predicament some six weeks after his conviction was affirmed, when he wrote them a letter from Texas' death row. Since coming into contact with his consul, Medellín has maintained that Texas authorities violated his rights under the Convention and has sought (among other relief) an evidentiary hearing to determine whether he was prejudiced by the violation.
First, Medellín filed a state application for a writ of habeas corpus. The Texas trial court denied relief, reasoning in relevant part:
"13. Based on the applicant's lack of objection at trial to the alleged failure to inform him of his rights under the Vienna Convention, the applicant is procedurally barred from presenting his habeas claim that the alleged violation of the Vienna Convention violated his constitutional rights. Hodge v. State, 631 S.W.2d 754, 757 (Tex. Crim. App. 1982); Williams v. State, 549 S.W.2d 183, 187 (Tex. Crim. App. 1977).
. . . . .
"15. In the alternative, the applicant, as a private individual, lacks standing to enforce the provisions of the Vienna Convention. Hinojosa v. State, No. 72,932 (Tex. Crim. App. Oct. 27, 1999) (holding that treaties operate *676 as contracts among nations; thus, offended nation, not individual, must seek redress for violation of sovereign interests)." Id., at 55a-56a.
The Texas Court of Criminal Appeals affirmed.
Medellín next petitioned for habeas relief in the United States District Court for the Southern District of Texas. While that petition was pending, the ICJ announced its interpretation of Article 36 in a case that Germany had brought against the United States after Arizona failed to advise two German capital defendants about consular notification. LaGrand, supra. Consistent with Medellín's own arguments about the Convention's meaning, the ICJ decided in LaGrand that the treaty confers individual rights and requires that state procedural default rules sometimes give way when foreign national defendants raise Vienna Convention claims. See id., at 490-491, 497-498. Medellín argued to the District Court that the ICJ's interpretation of Article 36 was definitive, persuasive, and should control the resolution of his claim. Rejecting these and other arguments, the District Court denied relief.
Medellín then sought to obtain a certificate of appealability (COA) from the United States Court of Appeals for the Fifth Circuit. See 28 U.S. C. § 2253(c). A COA may issue only if the applicant has demonstrated that "reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner [in the district court] or that the issues presented were `"adequate to deserve encouragement to proceed further."'" Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893, n. 4 (1983)).
Meanwhile, Mexico had initiated proceedings in the ICJ against the United States on grounds that 54 Mexican capital defendants, including Medellín, had been denied their Vienna Convention rights. See Avena, supra. The ICJ's decision in Avena issued while Medellín's application for a COA was pending. Repeating the construction it had given to Article *677 36 in LaGrand, the ICJ decided that Medellín and 50 others were entitled to review and reconsideration of their convictions and sentences because the United States, through various individual States, had violated their Vienna Convention rights. Avena, supra, ¶ 153. The Court of Appeals noted the ICJ's pronouncements in LaGrand and Avena, and nonetheless concluded that Medellín's treaty claim lacked the requisite merit for a COA.
We granted certiorari on two questions. First, does Avena have preclusive effect in our courts? Second, if our courts are not bound to apply Avena as a rule of decision, must they give the ICJ's decision effect for sake of uniform treaty interpretation or comity? These questions refer to substantial, debatable issues in Medellín's Vienna Convention claim. I would therefore vacate the denial of a COA and remand for further proceedings.
II
A
At every step, the federal courts must evaluate Medellín's Vienna Convention claim through the framework of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which controls the process by which a state prisoner may obtain federal habeas relief. And wherever the Convention, which has been in continuous force since 1969, conflicts with this subsequently enacted statute, the statute must govern. Reid v. Covert, 354 U.S. 1, 18 (1957) (plurality opinion); see also Whitney v. Robertson, 124 U.S. 190, 194 (1888).
At the outset, Texas and the United States argue that AEDPA's § 2253(c) precludes ruling for Medellín no matter how meritorious his Vienna Convention claim may be. According to § 2253(c)(2), a COA may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." Texas maintains that prisoners may only appeal district courts' adverse decisions involving constitutional rights that Congress did not use the word "constitutional" *678 in the statute as shorthand for all of the federal claims traditionally heard in habeas. But see 1 R. Hertz & J. Liebman, Federal Habeas Corpus Practice and Procedure 448-449 (4th ed. 2001). See also Slack, supra, at 483 (noting Congress' substitution of "`constitutional'" for "`federal'" in the standard for obtaining a certificate of probable cause the COA's predecessor without saying if the change is meaningful).
Texas concedes that it raised this objection for the first time in its merits brief to this Court. Tr. of Oral Arg. 29. Normally this Court will not decide a question raised at this stage. See Taylor v. Freeland & Kronz, 503 U.S. 638, 645-646 (1992). But Texas contends that this is a nonwaivable jurisdictional objection. So we must start with the question of whether it actually is an objection that cannot be waived. It is true that the COA is jurisdictional in the sense that it is a "gateway" device. Miller-El v. Cockrell, 537 U.S. 322, 337 (2003). By obliging applicants to make a threshold showing before their cases are aired out on appeal, the COA serves an important screening function and conserves the resources of appellate courts. To that end, the existence of a COA is jurisdictional insofar as a prisoner cannot appeal in habeas without one. See id., at 335-336. Accordingly, a federal court must verify that a COA has issued before hearing the merits of a habeas appeal.
It does not follow, however, that courts must raise and decide predicate arguments about the validity of a COA independently, without prompting from the parties, even when ordinary waiver rules would apply, as they must with true jurisdictional arguments. If that were so, an appellate court, presiding over an appeal after the district court had issued a COA, would always be required to check that a "substantial showing" had been made and a cognizable right asserted even in the absence of controversy between the parties. We have never imposed such a rule, and it would undermine the efficiency of the COA process. Cf. Young v. *679 United States, 124 F.3d 794, 799 (CA7 1997). Predicate considerations for a COA whether a "substantial showing" has been made or a "constitutional right" asserted are not the sorts of considerations that remain open for review throughout the entire case. Compare Peguero v. United States, 526 U.S. 23 (1999) (considering whether a violation of Federal Rule of Criminal Procedure 32(a)(2) provided a basis for collateral relief), with Brief for United States in Peguero v. United States, O. T. 1998, No. 97-9217, p. 6, n. 5 (arguing that § 2253(c) deprived the Court of jurisdiction because a constitutional right was not at stake). Thus, because Texas did not argue below that a treaty-based claim cannot support an application for a COA, it cannot raise the argument now.
Texas also adverts to another AEDPA provision, 28 U.S. C. § 2254(d), which it says is fatal to Medellín's treaty claim. The statute provides that a writ of habeas corpus shall not issue on behalf of a person in state custody with respect to any claim "adjudicated on the merits in State court proceedings unless the adjudication of the claim(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." Whether Medellín's claim clears these hurdles is an appropriate consideration for an appellate court contemplating whether to grant a COA, and for this Court reviewing the denial of a COA. See Miller-El, 537 U.S., at 349-350 (SCALIA, J., concurring) ("A circuit justice or judge must deny a COA . . . if all reasonable jurists would conclude that a substantive provision of the federal habeas statute bars relief"); see also id., at 336.
The Texas court's disposition of Medellín's Vienna Convention claim is not entitled to deference under § 2254(d), and thus should not constrain a final decision in federal court about whether he deserves habeas relief. The Texas court gave two reasons for dismissing the claim. First, it applied its procedural default rule to Medellín's assertion of right *680 under the Vienna Convention. See supra, at 675. In so doing, it did not adjudicate the merits of the relevant federal question whether, under Article 36(2), the treaty overrides state procedural default rules. Second, the Texas court appears to have reasoned that private individuals (as opposed to offended nations) can never enforce any treaty in court. See supra, at 675-676. This reasoning is "contrary to" our precedents and, therefore, is not entitled to deference in subsequent federal proceedings. "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." Williams v. Taylor, 529 U.S. 362, 405 (2000); see also Brown v. Payton, ante, at 141. The Texas court's blanket rule plainly contradicts our governing law, for it is axiomatic that, while treaties are compacts between nations, "a treaty may also contain provisions which confer certain rights upon the citizens or subjects of one of the nations residing in the territorial limits of the other, which partake of the nature of municipal law, and which are capable of enforcement as between private parties in the courts of the country." Head Money Cases, 112 U.S. 580, 598 (1884). The Texas court neither asked nor answered the right question: whether an individual can bring a claim under this particular treaty. Accordingly, any consideration of Medellín's Vienna Convention claim for habeas relief in federal court including his assertion that Avena provides a binding rule of decision must proceed de novo. See Williams, supra, at 406.
B
The Court catalogs a number of other, nonjurisdictional questions that, in its view, justify dismissing the case because they could preclude ultimate habeas relief for Medellín. Ante, at 664-666. Apparently the Court agrees that it would be impossible or imprudent to decide these questions today. It seems odd to me to leave them undecided and yet to rely on them as reason to avoid the weighty questions that *681 are undeniably properly before us. Given the posture of this case, our modest task is to decide only whether Medellín has presented claims worthy of a COA, and the majority points to issues outside the scope of that inquiry. Anyway, it is not our practice generally, when remanding a case to the lower courts after resolving discrete questions, to canvass all of the possible permutations of what could happen before a final resolution. Thus, while the Court points to questions that are, of course, important, none ought to detain us here.
First, Texas and the United States have made no mention of Reed v. Farley, 512 U.S. 339 (1994), and Hill v. United States, 368 U.S. 424 (1962), depriving Medellín of an opportunity to discuss their applicability to his case a complicated question. Second, while Texas did argue in its certiorari papers that Medellín had already received a prejudice analysis in state habeas, see Brief in Opposition 14-16, it abandoned this argument in its brief on the merits. See United States v. International Business Machines Corp., 517 U.S. 843, 855, n. 3 (1996) (the Court does not address abandoned arguments). Here, Texas argues that Medellín cannot show prejudice in a future proceeding, not that he has already failed to show prejudice or that the state court thought (not unreasonably) that the Vienna Convention had been satisfied by its prejudice analysis. See Brief for Respondent 16-17. Moreover, Medellín has maintained an unfulfilled request for an evidentiary hearing about prejudice. The ICJ, for its part, appears to believe that Medellín has yet to receive the prejudice analysis that the Vienna Convention requires; otherwise, it would not have ruled after the state habeas proceedings had concluded that the United States must still provide "review and reconsideration" of his sentence to determine if he suffered "actual prejudice." Avena, 2004 I. C. J. No. 128, ¶¶ 121-122, 153. Third, the Court is correct to observe that, before obtaining relief, Medellín would have to contend with Teague v. Lane, 489 U.S. 288 (1989). The Court of Appeals never discussed Teague's applicability to *682 Medellín's case. Whether Teague bars relief for Medellín is itself a highly debatable question that should be part of a proper COA analysis upon remand.
III
"While a COA ruling is not the occasion for a ruling on the merit of petitioner's claim," Miller-El, supra, at 331, some assessment of Medellín's arguments is necessary to explain why the COA's denial should be vacated.
A
The Optional Protocol to the Vienna Convention provides that "[d]isputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction of the International Court of Justice." Optional Protocol Concerning the Compulsory Settlement of Disputes, Apr. 24, 1963, Art. I [1970] 21 U. S. T. 326, T. I. A. S. No. 6820 (hereinafter Optional Protocol). The United States was party to the Optional Protocol until recently. See Letter from Condoleezza Rice, Secretary of State, to Kofi A. Annan, Secretary-General of the United Nations (Mar. 7, 2005) (notifying the Secretary-General that the United States hereby withdraws from the Optional Protocol). And the ICJ decided LaGrand and Avena pursuant to the Optional Protocol's grant of authority. The first question on which we granted certiorari asks whether American courts are now bound to follow the ICJ's decision in Avena when deciding Vienna Convention claims.[1]
*683 If Medellín is right to say that they must, then the District Court's resolution of his Vienna Convention claim is not merely debatable, but wrong in result and in reasoning. In terms of result, the ICJ made clear that it would be improper to dismiss Medellín's claim, for once the United States had committed "internationally wrongful acts," the necessary "remedy to make good these violations should consist in an obligation on the United States to permit review and reconsideration of [the 51 Mexican] nationals' cases by the United States courts." Avena, 2004 I. C. J. No. 128, ¶ 121. The ICJ's reasoning is also irreconcilable with the District Court's. The ICJ specified that the Convention confers rights on individual defendants, and that applying state procedural default rules to prevent them from vindicating their rights violates the treaty, for the treaty requires that its purposes be given "`full effect.'" Id., ¶¶ 106, 113.
Medellín argues that once the United States undertakes a substantive obligation (as it did in the Vienna Convention), and at the same time undertakes to abide by the result of a specified dispute resolution process (as it did by submitting to the ICJ's jurisdiction through the Optional Protocol), it is bound by the rules generated by that process no less than it is by the treaty that is the source of the substantive obligation. In other words, because Avena was decided on the back of a self-executing treaty, see infra, at 686, it must be given effect in our domestic legal system just as the treaty itself must be. Medellín asserts, at bottom, that Avena, like a treaty, has the status of supreme law of the land.
On the other hand, Texas and the United States argue that the issue turns in large part on how to interpret Article 94(1) of the United Nations Charter, which provides that "[e]ach Member of the United Nations undertakes to comply with *684 the decision of the International Court of Justice in any case to which it is a party." 59 Stat. 1051. They maintain that the charter imposes an international duty only on our political branches. A contrary result could deprive the Executive of necessary discretion in foreign relations, and may improperly displace this Court's responsibilities to an international body. For his part, Medellín says that Article 94(1) cannot answer the question of whether, under domestic law and the Supremacy Clause, our courts are bound to comply with the international obligation reflected in Avena.
The Court of Appeals passed on whether it was bound by Avena, and decided that the issue was not worthy of a COA. In so doing, it noted some conflict between Avena and our decision in Breard v. Greene, 523 U.S. 371, 376 (1998) (per curiam). How to resolve that conflict is a difficult question. Reasonable jurists can vigorously disagree about whether and what legal effect ICJ decisions have in our domestic courts, and about whether Medellín can benefit from such effect in this posture. The Court of Appeals should have granted a COA and given the issue further consideration.
B
We also granted certiorari on a second, alternative question that asks whether and what weight American courts should give to Avena, perhaps for sake of uniform treaty interpretation, even if they are not bound to follow the ICJ's decision. That question can only be answered by holding up the Avena interpretation of the treaty against the domestic court's own conclusions, and then deciding how and to what extent the two should be reconciled. See Olympic Airways v. Husain, 540 U.S. 644, 660-661 (2004) (SCALIA, J., dissenting); Air France v. Saks, 470 U.S. 392, 404 (1985). Accordingly, the second question presented encompassed two other issues, both pressed and passed upon below, that are themselves debatable and thus grounds for a COA: whether the *685 Vienna Convention creates judicially enforceable rights and whether it sometimes trumps state procedural default rules.[2]
This Court has remarked that Article 36 of the Vienna Convention "arguably confers on an individual the right to consular assistance following arrest." Breard, supra, at 376. The United States maintains, on the contrary, that Article 36 does not give foreign nationals a judicially enforceable right to consular access. On that theory, a detained foreign national may never complain in courteven in the course of a trial or on direct reviewabout a State's failure to "inform the person concerned without delay of his rights under" Article 36. 21 U. S. T., at 101. The complainant must be the sending state, and any remedy is political, diplomatic, or between the states in international law.
When called upon to interpret a treaty in a given case or controversy, we give considerable weight to the Executive Branch's understanding of our treaty obligations. See Kolovrat v. Oregon, 366 U.S. 187, 194 (1961); Charlton v. Kelly, 229 U.S. 447, 468 (1913). But a treaty's meaning is not beyond *686 debate once the Executive has interpreted it. Cf., e. g., Chan v. Korean Air Lines, Ltd., 490 U.S. 122, 136 (1989) (Brennan, J., concurring in judgment) (observing that the Court was rejecting a view of the Warsaw Convention that had consistently been adopted by the Executive Branch and had been pressed by the United States in that case); Perkins v. Elg, 307 U.S. 325, 328, 337-342 (1939) (declining to adopt Executive's treaty interpretation); Johnson v. Browne, 205 U.S. 309, 319-321 (1907) (same); De Lima v. Bidwell, 182 U.S. 1, 181, 194-199 (1901) (same).
Article 36 of the Vienna Convention on Consular Relations is, as the United States recognizes, a self-executing treaty. Brief for United States as Amicus Curiae 26. Chief Justice Marshall explained that a self-executing treaty is domestic law. It "operates of itself," as "a rule for the Court," "equivalent to an act of the legislature." Foster v. Neilson, 2 Pet. 253, 314 (1829). Because the Convention is self-executing, then, its guarantees are susceptible to judicial enforcement just as the provisions of a statute would be. See Head Money Cases, 112 U. S., at 598-599 ("A treaty, then, is a law of the land as an act of Congress is, whenever its provisions prescribe a rule by which the rights of the private citizen or subject may be determined. And when such rights are of a nature to be enforced in a court of justice, that court resorts to the treaty for a rule of decision for the case before it as it would to a statute"); see generally L. Henkin, Foreign Affairs and the United States Constitution 206-209 (2d ed. 1996).
To ascertain whether Article 36 confers a right on individuals, we first look to the treaty's text as we would with a statute's. United States v. Alvarez-Machain, 504 U.S. 655, 663 (1992); Air France, supra, at 397. Article 36(1)(b) entails three different obligations for signatory host countries. Their competent authorities shall (1) inform the consul of its nationals' detentions, (2) forward communication from a detained national to his consulate, and (3) "inform the person *687 concerned without delay of his rights under this subparagraph." 21 U. S. T., at 101 (emphasis added). Of these, the third exclusively concerns the detained individual, and it is the only obligation expressed in the language of rights. If Article 36(1) conferred no rights on the detained individual, its command to "inform" the detainee of "his rights" might be meaningless. Other provisions in the treaty appear to refer back to individual rights. See Art. 36(1)(a), ibid.; Art. 36(2), ibid.
To be sure, the questions of whether a treaty is self-executing and whether it creates private rights and remedies are analytically distinct. If Article 36(1)(b) imposed only two obligations on signatory countries to notify the consul and forward correspondence then Medellín could not invoke the treaty as a source of personal rights by virtue of its self-executing character. But the treaty goes further imposing an obligation to inform the individual of his rights in the treaty. And if a statute were to provide, for example, that arresting authorities "shall inform a detained person without delay of his right to counsel," I question whether more would be required before a defendant could invoke that statute to complain in court if he had not been so informed.
This Court has repeatedly enforced treaty-based rights of individual foreigners, allowing them to assert claims arising from various treaties. These treaties, often regarding reciprocity in commerce and navigation, do not share any special magic words. Their rights-conferring language is arguably no clearer than the Vienna Convention's is, and they do not specify judicial enforcement. See, e. g., Asakura v. Seattle, 265 U.S. 332, 340 (1924) (allowing Japanese national to bring a claim under a United States-Japan treaty requiring that "`citizens or subjects of each of the [two countries] shall have liberty . . . to carry on trade'" in the other's territory, and holding that a local licensing ordinance for pawnbrokers could not be applied to the Japanese petitioner without violating the treaty's guarantee); Kolovrat, supra, at 191-192, *688 and n. 6 (sustaining Yugoslavians' claim against enforcement of Oregon inheritance law limiting their right to inherit, when United States-Serbia Treaty promised that "`[i]n all that concerns the right of acquiring, possessing or disposing of every kind of property . . . citizens of [each country in the other] shall enjoy the rights which the respective laws grant in each of these states to the subjects of the most favored nation'").
Likewise, the United States acknowledges with approval that other provisions of the Vienna Convention, which relate to consular privileges and immunities, have been the source of judicially enforced individual rights. See Brief for United States as Amicus Curiae 26, n. 7 (citing Risk v. Halvorsen, 936 F.2d 393, 397 (CA9 1991) (deciding whether Article 43 of the Vienna Convention defeated jurisdiction under 28 U.S. C. § 1351 over defendant consular officials), and Gerritsen v. de la Madrid Hurtado, 819 F.2d 1511, 1515-1516 (CA9 1987) (same)). Although Article 43 is phrased in terms of courts' jurisdiction, its violations could theoretically also be vindicated exclusively in political and diplomatic processes, but have not been. See Art. 43(1), 21 U. S. T., at 104 ("Consular officers and consular employees shall not be amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of consular functions"); see also Kolovrat, 366 U. S., at 193; Hauenstein v. Lynham, 100 U.S. 483, 487 (1880).
There are plausible arguments for the Government's construction of Article 36. See generally Choctaw Nation v. United States, 318 U.S. 423, 431-432 (1943) (looking to extrinsic sources for treaty interpretation). The preamble to the Vienna Convention, for example, states that "the purpose of such privileges and immunities [contained in the treaty] is not to benefit individuals but to ensure the efficient performance of functions by consular posts on behalf of their respective States." 21 U. S. T., at 79. Moreover, State Department *689 and congressional statements contemporaneous with the treaty's ratification say or indicate that the Convention would not require significant departures from existing practice. See United States v. Li, 206 F.3d 56, 64-65 (CA1 2000); but see id., at 73-75 (Torruella, C. J., concurring in part and dissenting in part). The United States interprets such statements to mean that the political branches did not contemplate a role for the treaty in ordinary criminal proceedings. See Brief for United States as Amicus Curiae 21-22. The Government also asserts that the State Department's previous litigation behavior in Article 36 cases is consistent with the Executive's treaty interpretation presented here. Id., at 22-23; see also Li, supra, at 64. I would allow fuller consideration of this issue upon the granting of a COA.
Of course, even if the Convention does confer individual rights, there remains the question of whether such rights can be forfeited according to state procedural default rules. Article 36(2) of the treaty provides: "The rights referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended." 21 U. S. T., at 101. Medellín contends that this provision requires that state procedural default rules sometimes be set aside so that the treaty can be given "full effect." Ibid. In Breard, in the course of denying a stay of imminent execution and accompanying petitions, we concluded that the petitioner had defaulted his Article 36 claim by failing to raise it in state court prior to seeking collateral relief in federal court. 523 U.S., at 375-376. Subsequently in Avena, as explained above, the ICJ interpreted Article 36(2) differently. Avena, 2004 I. C. J. No. 128, ¶¶ 112-113. In the past the Court has revisited its interpretation of a treaty when new international law has come to light. See United States v. Percheman, 7 Pet. 51, 89 (1833). Even if Avena is not *690 itself a binding rule of decision in this case, it may at least be occasion to return to the question of Article 36(2)'s implications for procedural default.
Again, I would not decide that question today. All that is required of Medellín now is to show that his case is debatable. He has done at least that much. Because of the COA posture, we cannot, and I would not, construe Article 36 definitively here. I would conclude only that Medellín's arguments about the treaty themselves warrant a COA.
IV
For the reasons explained, I would vacate the Court of Appeals' decision to deny Medellín a COA with which to proceed, and remand for further proceedings. After we granted certiorari in this case, the President informed his Attorney General that the United States would discharge its obligations under the Avena judgment "by having State courts give effect to the decision." George W. Bush, Memorandum for the Attorney General (Feb. 28, 2005), App. 2 to Brief for United States as Amicus Curiae 9a. Medellín has since filed a successive petition in state court. It is possible that the Texas court will grant him relief on the basis of the President's memorandum. On remand, the Court of Appeals for the Fifth Circuit may have wished to consider that possibility when scheduling further federal proceedings, and to hold the case on its docket until Medellín's successive petition was resolved in state court. See Landis v. North American Co., 299 U.S. 248, 254 (1936). | José Ernesto Medellín offered proof to the Court of Appeals that reasonable jurists would find debatable or wrong the District Court's disposition of his claim that Texas violated his rights under the Vienna Convention on Consular Relations and that he is thereby entitled to review and reconsideration of his conviction and sentence. Three specific issues deserve further consideration: (1) whether the International Court of Justice's judgment in Medellín's favor, Case *673 Concerning and Other Mexican Nationals (Mex. v. U. S.), 2004 I. C. J. No. 128 (Judgment of Mar. 31), is binding on American courts; (2) whether Article 36(1)(b) of the Convention creates a judicially enforceable individual right; and (3) whether Article 36(2) of the Convention sometimes requires state procedural default rules to be set aside so that the treaty can be given "full effect." Accordingly, I would vacate the denial of a certificate of appealability and remand for resolution of these issues. The Court dismisses the writ (and terminates federal proceedings) on the basis of speculation: Medellín might obtain relief in new state court proceedings because of the President's recent memorandum about whose constitutionality the Court remains rightfully agnostic, or he might be unable to secure ultimate relief in federal court because of questions about whose resolution the Court is likewise, rightfully, undecided. These tentative predictions are not, in my view, reason enough to avoid questions that are as compelling now as they were when we granted a writ of certiorari, and that remain properly before this Court. It seems to me unsound to avoid questions of national importance when they are bound to recur. I respectfully dissent. I Article 36 of the Vienna Convention on Consular Relations guarantees open channels of communication between detained foreign nationals and their consulates in signatory countries: "[I]f he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities *674 without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph." Vienna Convention on Consular Relations, Art. 36(1)(b), Apr. 24, 1963, [1970] 21 U. S. T. 77, 101, T. I. A. S. No. 6820. Presently 167 nations are party to the Vienna Convention, including our immediate neighbors to the north and south. Multilateral Treaties Deposited with the Secretary-General United Nations, N. Y., http://untreaty.un.org/English/bible/englishinternetbible/partI/chapterIII/treaty31.asp (all Internet materials as visited May 19, 2005, and available in Clerk of Court's case file). In this country, the individual States' (often confessed) noncompliance with the treaty has been a vexing problem. See, e. g., United It has three times been the subject of proceedings in the International Court of Justice (ICJ). See Case Concerning Vienna Convention on Consular Relations (Para. v. U. S.), 1998 I. C. J. 426 (Order of Nov. 10); LaGrand Case (F. R. G. v. U. S.), I. C. J. 466 (Judgment of June 27); The problem may have considerable ramifications, because foreign nationals are regularly subject to state criminal justice systems. For example, in 2003, over 56,000 noncitizens were held in state prisons. Noncitizens accounted for over 10% of the prison populations in California, New York, and Arizona. U. S. Dept. of Justice, Bureau of Justice Statistics Bull., p. 5 Prison and Jail Inmates at Midyear 2003, http://www.ojp.usdoj.gov/bjs/pub/pdf/pjim03.pdf. Noncompliance with our treaty obligations is especially worrisome in capital cases. As of February 2005, 119 non-citizens from 31 nations were on state death row. Foreign Nationals and the Death Penalty in the United States, Reported Foreign Nationals Under Sentence of Death in the U. S., http://www.deathpenaltyinfo.org/article.php?did=198& *675 scid=31. In the ICJ determined that the United States had breached its obligation to inform 51 Mexican nationals, all sentenced to death in this country, of their right to consular notification. Medellín is just one of them. 2004 I. C. J. No. 128, ¶ 106. His case thus presents, and the Court in turn avoids, questions that will inevitably recur. José Ernesto Medellín told the officers who arrested him in Texas that he was born in Laredo, Mexico. App. JA15. He also told the Harris County Pretrial Services that he is not an American citizen. App. to Pet. for Cert. 165a. Nonetheless, Medellín was arrested, detained, tried, convicted, and sentenced to death without ever being informed that he could contact the Mexican consul. Mexican consular authorities only became aware of Medellín's predicament some six weeks after his conviction was affirmed, when he wrote them a letter from Texas' death row. Since coming into contact with his consul, Medellín has maintained that Texas authorities violated his rights under the Convention and has sought (among other relief) an evidentiary hearing to determine whether he was prejudiced by the violation. First, Medellín filed a state application for a writ of habeas corpus. The Texas trial court denied relief, reasoning in relevant part: "13. Based on the applicant's lack of objection at trial to the alleged failure to inform him of his rights under the Vienna Convention, the applicant is procedurally barred from presenting his habeas claim that the alleged violation of the Vienna Convention violated his constitutional rights. ; "15. In the alternative, the applicant, as a private individual, lacks standing to enforce the provisions of the Vienna Convention. Hinojosa v. State, No. 72,932 (holding that treaties operate *676 as contracts among nations; thus, offended nation, not individual, must seek redress for violation of sovereign interests)." at 55a-56a. The Texas Court of Criminal Appeals affirmed. Medellín next petitioned for habeas relief in the United States District Court for the Southern District of Texas. While that petition was pending, the ICJ announced its interpretation of Article 36 in a case that Germany had brought against the United States after Arizona failed to advise two German capital defendants about consular notification. LaGrand, Consistent with Medellín's own arguments about the Convention's meaning, the ICJ decided in LaGrand that the treaty confers individual rights and requires that state procedural default rules sometimes give way when foreign national defendants raise Vienna Convention claims. See Medellín argued to the District Court that the ICJ's interpretation of Article 36 was definitive, persuasive, and should control the resolution of his claim. Rejecting these and other arguments, the District Court denied relief. Medellín then sought to obtain a certificate of appealability (COA) from the United States Court of Appeals for the Fifth Circuit. See 28 U.S. C. 2253(c). A COA may issue only if the applicant has demonstrated that "reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner [in the district court] or that the issues presented were `"adequate to deserve encouragement to proceed further."'" Meanwhile, Mexico had initiated proceedings in the ICJ against the United States on grounds that 54 Mexican capital defendants, including Medellín, had been denied their Vienna Convention rights. See The ICJ's decision in issued while Medellín's application for a COA was pending. Repeating the construction it had given to Article *677 36 in LaGrand, the ICJ decided that Medellín and 50 others were entitled to review and reconsideration of their convictions and sentences because the United States, through various individual States, had violated their Vienna Convention rights. The Court of Appeals noted the ICJ's pronouncements in LaGrand and and nonetheless concluded that Medellín's treaty claim lacked the requisite merit for a COA. We granted certiorari on two questions. First, does have preclusive effect in our courts? Second, if our courts are not bound to apply as a rule of decision, must they give the ICJ's decision effect for sake of uniform treaty interpretation or comity? These questions refer to substantial, debatable issues in Medellín's Vienna Convention claim. I would therefore vacate the denial of a COA and remand for further proceedings. II A At every step, the federal courts must evaluate Medellín's Vienna Convention claim through the framework of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which controls the process by which a state prisoner may obtain federal habeas relief. And wherever the Convention, which has been in continuous force since 1969, conflicts with this subsequently enacted statute, the statute must govern. ; see also (88). At the outset, Texas and the United States argue that AEDPA's 2253(c) precludes ruling for Medellín no matter how meritorious his Vienna Convention claim may be. According to 2253(c)(2), a COA may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." Texas maintains that prisoners may only appeal district courts' adverse decisions involving constitutional rights that Congress did not use the word "constitutional" *678 in the statute as shorthand for all of the federal claims traditionally heard in habeas. But see 1 R. Hertz & J. ebman, Federal Habeas Corpus Practice and Procedure 448-449 See also Texas concedes that it raised this objection for the first time in its merits brief to this Court. Tr. of Oral Arg. 29. Normally this Court will not decide a question raised at this stage. See But Texas contends that this is a nonwaivable jurisdictional objection. So we must start with the question of whether it actually is an objection that cannot be waived. It is true that the COA is jurisdictional in the sense that it is a "gateway" device. By obliging applicants to make a threshold showing before their cases are aired out on appeal, the COA serves an important screening function and conserves the resources of appellate courts. To that end, the existence of a COA is jurisdictional insofar as a prisoner cannot appeal in habeas without one. See Accordingly, a federal court must verify that a COA has issued before hearing the merits of a habeas appeal. It does not follow, however, that courts must raise and decide predicate arguments about the validity of a COA independently, without prompting from the parties, even when ordinary waiver rules would apply, as they must with true jurisdictional arguments. If that were so, an appellate court, presiding over an appeal after the district court had issued a COA, would always be required to check that a "substantial showing" had been made and a cognizable right asserted even in the absence of controversy between the parties. We have never imposed such a rule, and it would undermine the efficiency of the COA process. Cf. Predicate considerations for a COA whether a "substantial showing" has been made or a "constitutional right" asserted are not the sorts of considerations that remain open for review throughout the entire case. Compare with Brief for United States in O. T. 1998, No. 97-9217, p. 6, n. 5 (arguing that 2253(c) deprived the Court of jurisdiction because a constitutional right was not at stake). Thus, because Texas did not argue below that a treaty-based claim cannot support an application for a COA, it cannot raise the argument now. Texas also adverts to another AEDPA provision, 28 U.S. C. 2(d), which it says is fatal to Medellín's treaty claim. The statute provides that a writ of habeas corpus shall not issue on behalf of a person in state custody with respect to any claim "adjudicated on the merits in State court proceedings unless the adjudication of the claim(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." Whether Medellín's claim clears these hurdles is an appropriate consideration for an appellate court contemplating whether to grant a COA, and for this Court reviewing the denial of a COA. See -350 ("A circuit justice or judge must deny a COA if all reasonable jurists would conclude that a substantive provision of the federal habeas statute bars relief"); see also The Texas court's disposition of Medellín's Vienna Convention claim is not entitled to deference under 2(d), and thus should not constrain a final decision in federal court about whether he deserves habeas relief. The Texas court gave two reasons for dismissing the claim. First, it applied its procedural default rule to Medellín's assertion of right *680 under the Vienna Convention. See In so doing, it did not adjudicate the merits of the relevant federal question whether, under Article 36(2), the treaty overrides state procedural default rules. Second, the Texas court appears to have reasoned that private individuals (as opposed to offended nations) can never enforce any treaty in See -676. This reasoning is "contrary to" our precedents and, therefore, is not entitled to deference in subsequent federal proceedings. "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." ; see also Brown v. Payton, ante, at 141. The Texas court's blanket rule plainly contradicts our governing law, for it is axiomatic that, while treaties are compacts between nations, "a treaty may also contain provisions which confer certain rights upon the citizens or subjects of one of the nations residing in the territorial limits of the other, which partake of the nature of municipal law, and which are capable of enforcement as between private parties in the courts of the country." Head Money (84). The Texas court neither asked nor answered the right question: whether an individual can bring a claim under this particular treaty. Accordingly, any consideration of Medellín's Vienna Convention claim for habeas relief in federal court including his assertion that provides a binding rule of decision must proceed de novo. See B The Court catalogs a number of other, nonjurisdictional questions that, in its view, justify dismissing the case because they could preclude ultimate habeas relief for Medellín. Ante, at 664-666. Apparently the Court agrees that it would be impossible or imprudent to decide these questions today. It seems odd to me to leave them undecided and yet to rely on them as reason to avoid the weighty questions that *681 are undeniably properly before us. Given the posture of this case, our modest task is to decide only whether Medellín has presented claims worthy of a COA, and the majority points to issues outside the scope of that inquiry. Anyway, it is not our practice generally, when remanding a case to the lower courts after resolving discrete questions, to canvass all of the possible permutations of what could happen before a final resolution. Thus, while the Court points to questions that are, of course, important, none ought to detain us here. First, Texas and the United States have made no mention of and depriving Medellín of an opportunity to discuss their applicability to his case a complicated question. Second, while Texas did argue in its certiorari papers that Medellín had already received a prejudice analysis in state habeas, see Brief in Opposition 14-16, it abandoned this argument in its brief on the merits. See United Here, Texas argues that Medellín cannot show prejudice in a future proceeding, not that he has already failed to show prejudice or that the state court thought (not unreasonably) that the Vienna Convention had been satisfied by its prejudice analysis. See Brief for Respondent 16-17. Moreover, Medellín has maintained an unfulfilled request for an evidentiary hearing about prejudice. The ICJ, for its part, appears to believe that Medellín has yet to receive the prejudice analysis that the Vienna Convention requires; otherwise, it would not have ruled after the state habeas proceedings had concluded that the United States must still provide "review and reconsideration" of his sentence to determine if he suffered "actual prejudice." 2004 I. C. J. No. 128, ¶¶ 121-122, 153. Third, the Court is correct to observe that, before obtaining relief, Medellín would have to contend with The Court of Appeals never discussed Teague's applicability to *682 Medellín's case. Whether Teague bars relief for Medellín is itself a highly debatable question that should be part of a proper COA analysis upon remand. III "While a COA ruling is not the occasion for a ruling on the merit of petitioner's claim," some assessment of Medellín's arguments is necessary to explain why the COA's denial should be vacated. A The Optional Protocol to the Vienna Convention provides that "[d]isputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction of the International Court of Justice." Optional Protocol Concerning the Compulsory Settlement of Disputes, Apr. 24, 1963, Art. I [1970] 21 U. S. T. 326, T. I. A. S. No. 6820 (hereinafter Optional Protocol). The United States was party to the Optional Protocol until recently. See Letter from Condoleezza Rice, Secretary of State, to Kofi A. Annan, Secretary-General of the United Nations (Mar. 7, 2005) (notifying the Secretary-General that the United States hereby withdraws from the Optional Protocol). And the ICJ decided LaGrand and pursuant to the Optional Protocol's grant of authority. The first question on which we granted certiorari asks whether American courts are now bound to follow the ICJ's decision in when deciding Vienna Convention claims.[1] *683 If Medellín is right to say that they must, then the District Court's resolution of his Vienna Convention claim is not merely debatable, but wrong in result and in reasoning. In terms of result, the ICJ made clear that it would be improper to dismiss Medellín's claim, for once the United States had committed "internationally wrongful acts," the necessary "remedy to make good these violations should consist in an obligation on the United States to permit review and reconsideration of [the 51 Mexican] nationals' cases by the United States courts." 2004 I. C. J. No. 128, ¶ 121. The ICJ's reasoning is also irreconcilable with the District Court's. The ICJ specified that the Convention confers rights on individual defendants, and that applying state procedural default rules to prevent them from vindicating their rights violates the treaty, for the treaty requires that its purposes be given "`full effect.'" Medellín argues that once the United States undertakes a substantive obligation (as it did in the Vienna Convention), and at the same time undertakes to abide by the result of a specified dispute resolution process (as it did by submitting to the ICJ's jurisdiction through the Optional Protocol), it is bound by the rules generated by that process no less than it is by the treaty that is the source of the substantive obligation. In other words, because was decided on the back of a self-executing treaty, see infra, at 686, it must be given effect in our domestic legal system just as the treaty itself must be. Medellín asserts, at bottom, that like a treaty, has the status of supreme law of the land. On the other hand, Texas and the United States argue that the issue turns in large part on how to interpret Article 94(1) of the United Nations Charter, which provides that "[e]ach Member of the United Nations undertakes to comply with *684 the decision of the International Court of Justice in any case to which it is a party." They maintain that the charter imposes an international duty only on our political branches. A contrary result could deprive the Executive of necessary discretion in foreign relations, and may improperly displace this Court's responsibilities to an international body. For his part, Medellín says that Article 94(1) cannot answer the question of whether, under domestic law and the Supremacy Clause, our courts are bound to comply with the international obligation reflected in The Court of Appeals passed on whether it was bound by and decided that the issue was not worthy of a COA. In so doing, it noted some conflict between and our decision in How to resolve that conflict is a difficult question. Reasonable jurists can vigorously disagree about whether and what legal effect ICJ decisions have in our domestic courts, and about whether Medellín can benefit from such effect in this posture. The Court of Appeals should have granted a COA and given the issue further consideration. B We also granted certiorari on a second, alternative question that asks whether and what weight American courts should give to perhaps for sake of uniform treaty interpretation, even if they are not bound to follow the ICJ's decision. That question can only be answered by holding up the interpretation of the treaty against the domestic court's own conclusions, and then deciding how and to what extent the two should be reconciled. See Olympic ; Air Accordingly, the second question presented encompassed two other issues, both pressed and passed upon below, that are themselves debatable and thus grounds for a COA: whether the *685 Vienna Convention creates judicially enforceable rights and whether it sometimes trumps state procedural default rules.[2] This Court has remarked that Article 36 of the Vienna Convention "arguably confers on an individual the right to consular assistance following arrest." at The United States maintains, on the contrary, that Article 36 does not give foreign nationals a judicially enforceable right to consular access. On that theory, a detained foreign national may never complain in courteven in the course of a trial or on direct reviewabout a State's failure to "inform the person concerned without delay of his rights under" Article 36. 21 U. S. T., at 101. The complainant must be the sending state, and any remedy is political, diplomatic, or between the states in international law. When called upon to interpret a treaty in a given case or controversy, we give considerable weight to the Executive Branch's understanding of our treaty obligations. See 366 U.S. ; But a treaty's meaning is not beyond *686 debate once the Executive has interpreted it. Cf., e. g., (observing that the Court was rejecting a view of the Warsaw Convention that had consistently been adopted by the Executive Branch and had been pressed by the United States in that case); 328, -342 ; ; De 2 U.S. 1, 1, -199 Article 36 of the Vienna Convention on Consular Relations is, as the United States recognizes, a self-executing treaty. Brief for United States as Amicus Curiae 26. Chief Justice Marshall explained that a self-executing treaty is domestic law. It "operates of itself," as "a rule for the Court," "equivalent to an act of the legislature." (29). Because the Convention is self-executing, then, its guarantees are susceptible to judicial enforcement just as the provisions of a statute would be. See Head Money 112 U. S., at -599 ("A treaty, then, is a law of the land as an act of Congress is, whenever its provisions prescribe a rule by which the rights of the private citizen or subject may be determined. And when such rights are of a nature to be enforced in a court of justice, that court resorts to the treaty for a rule of decision for the case before it as it would to a statute"); see generally L. Henkin, Foreign Affairs and the United States Constitution 206-209 To ascertain whether Article 36 confers a right on individuals, we first look to the treaty's text as we would with a statute's. United ; Air Article 36(1)(b) entails three different obligations for signatory host countries. Their competent authorities shall (1) inform the consul of its nationals' detentions, (2) forward communication from a detained national to his consulate, and (3) "inform the person *687 concerned without delay of his rights under this subparagraph." 21 U. S. T., at 101 (emphasis added). Of these, the third exclusively concerns the detained individual, and it is the only obligation expressed in the language of rights. If Article 36(1) conferred no rights on the detained individual, its command to "inform" the detainee of "his rights" might be meaningless. Other provisions in the treaty appear to refer back to individual rights. See Art. 36(1)(a), ; Art. 36(2), To be sure, the questions of whether a treaty is self-executing and whether it creates private rights and remedies are analytically distinct. If Article 36(1)(b) imposed only two obligations on signatory countries to notify the consul and forward correspondence then Medellín could not invoke the treaty as a source of personal rights by virtue of its self-executing character. But the treaty goes further imposing an obligation to inform the individual of his rights in the treaty. And if a statute were to provide, for example, that arresting authorities "shall inform a detained person without delay of his right to counsel," I question whether more would be required before a defendant could invoke that statute to complain in court if he had not been so informed. This Court has repeatedly enforced treaty-based rights of individual foreigners, allowing them to assert claims arising from various treaties. These treaties, often regarding reciprocity in commerce and navigation, do not share any special magic words. Their rights-conferring language is arguably no clearer than the Vienna Convention's is, and they do not specify judicial enforcement. See, e. g., (allowing Japanese national to bring a claim under a United States-Japan treaty requiring that "`citizens or subjects of each of the [two countries] shall have liberty to carry on trade'" in the other's territory, and holding that a local licensing ordinance for pawnbrokers could not be applied to the Japanese petitioner without violating the treaty's guarantee); *688 and n. 6 (sustaining Yugoslavians' claim against enforcement of Oregon inheritance law limiting their right to inherit, when United States-Serbia Treaty promised that "`[i]n all that concerns the right of acquiring, possessing or disposing of every kind of property citizens of [each country in the other] shall enjoy the rights which the respective laws grant in each of these states to the subjects of the most favored nation'"). kewise, the United States acknowledges with approval that other provisions of the Vienna Convention, which relate to consular privileges and immunities, have been the source of judicially enforced individual rights. See Brief for United States as Amicus Curiae 26, n. 7 (deciding whether Article 43 of the Vienna Convention defeated jurisdiction under 28 U.S. C. 1351 over defendant consular officials), and ). Although Article 43 is phrased in terms of courts' jurisdiction, its violations could theoretically also be vindicated exclusively in political and diplomatic processes, but have not been. See Art. 43(1), 21 U. S. T., at 104 ("Consular officers and consular employees shall not be amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of consular functions"); see also ; (80). There are plausible arguments for the Government's construction of Article 36. See generally Choctaw 3 U.S. 423, (3) The preamble to the Vienna Convention, for example, states that "the purpose of such privileges and immunities [contained in the treaty] is not to benefit individuals but to ensure the efficient performance of functions by consular posts on behalf of their respective States." 21 U. S. T., at 79. Moreover, State Department *6 and congressional statements contemporaneous with the treaty's ratification say or indicate that the Convention would not require significant departures from existing practice. See United ; but see The United States interprets such statements to mean that the political branches did not contemplate a role for the treaty in ordinary criminal proceedings. See Brief for United States as Amicus Curiae 21-22. The Government also asserts that the State Department's previous litigation behavior in Article 36 cases is consistent with the Executive's treaty interpretation presented here. ; see also I would allow fuller consideration of this issue upon the granting of a COA. Of course, even if the Convention does confer individual rights, there remains the question of whether such rights can be forfeited according to state procedural default rules. Article 36(2) of the treaty provides: "The rights referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended." 21 U. S. T., at 101. Medellín contends that this provision requires that state procedural default rules sometimes be set aside so that the treaty can be given "full effect." In in the course of denying a stay of imminent execution and accompanying petitions, we concluded that the petitioner had defaulted his Article 36 claim by failing to raise it in state court prior to seeking collateral relief in federal -. Subsequently in as explained above, the ICJ interpreted Article 36(2) differently. 2004 I. C. J. No. 128, ¶¶ 112-113. In the past the Court has revisited its interpretation of a treaty when new international law has come to light. See United (33). Even if is not *690 itself a binding rule of decision in this case, it may at least be occasion to return to the question of Article 36(2)'s implications for procedural default. Again, I would not decide that question today. All that is required of Medellín now is to show that his case is debatable. He has done at least that much. Because of the COA posture, we cannot, and I would not, construe Article 36 definitively here. I would conclude only that Medellín's arguments about the treaty themselves warrant a COA. IV For the reasons explained, I would vacate the Court of Appeals' decision to deny Medellín a COA with which to proceed, and remand for further proceedings. After we granted certiorari in this case, the President informed his Attorney General that the United States would discharge its obligations under the judgment "by having State courts give effect to the decision." George W. Bush, Memorandum for the Attorney General (Feb. 28, 2005), App. 2 to Brief for United States as Amicus Curiae 9a. Medellín has since filed a successive petition in state It is possible that the Texas court will grant him relief on the basis of the President's memorandum. On remand, the Court of Appeals for the Fifth Circuit may have wished to consider that possibility when scheduling further federal proceedings, and to hold the case on its docket until Medellín's successive petition was resolved in state See |
Justice Kennedy | majority | false | Bethesda Hospital Assn. v. Bowen | 1988-04-04T00:00:00 | null | https://www.courtlistener.com/opinion/112034/bethesda-hospital-assn-v-bowen/ | https://www.courtlistener.com/api/rest/v3/clusters/112034/ | 1,988 | 1987-058 | 2 | 9 | 0 | Under the Medicare program, Title XVIII of the Social Security Act, 79 Stat. 291, 42 U.S. C. § 1395 et seq. (1982 ed. and Supp. III), certain qualified providers of health care services are reimbursed by the Secretary of Health and Human Services for the reasonable cost of providing covered services to Medicare beneficiaries. Each such provider submits a cost report at the end of the year to a fiscal intermediary, usually a private insurance company acting as an agent *401 for the Secretary. The fiscal intermediary audits the cost report and issues a Notice of Program Reimbursement specifying the amount of reimbursement due to the provider and explaining any adjustments.
A provider may appeal the intermediary's final determination to the Provider Reimbursement Review Board and, under certain circumstances, may obtain a hearing from the Board. The Board is authorized to affirm, modify, or reverse intermediary decisions. The Secretary, either on his own motion or on request of the provider, may review the matter further, and any provider that remains dissatisfied with a final decision of the Board or Secretary may seek review in a United States district court. §§ 1395oo(a), (d), (f).
This case requires us to decide whether the Board may decline to consider a provider's challenge to one of the Secretary's regulations on the ground that the provider failed to contest the regulation's validity in the cost report submitted to its fiscal intermediary.
I
Petitioners Bethesda Hospital Association and Deaconess Hospital of Cincinnati are Ohio entities that operate hospitals in that State. Bethesda and Deaconess joined with some 27 other hospitals to challenge a 1979 regulation promulgated by the Secretary, which disallowed certain claims for malpractice insurance premium costs. We are not concerned here with the merits of the challenge to the 1979 regulation; rather, we must decide whether the Board had jurisdiction to consider the issue.
In their cost reports for 1980, petitioners followed the 1979 regulation in their apportionment of malpractice insurance costs and thereby effected, in the lexicon of the Medicare program, a "self-disallowance" of malpractice insurance costs in excess of those allowed by the 1979 regulation. Petitioners later filed a timely request for a hearing before the Board, challenging the validity of the malpractice regulation and *402 seeking reimbursement for malpractice costs in accordance with the pre-1979 methodology. Because the amounts had been self-disallowed in the reports filed with the fiscal intermediary, however, the Board determined that it was without jurisdiction to hear petitioners' claims. The Board held, in essence, that a statutory condition to its jurisdiction had not been met, stating that its authority to grant hearings is limited to cases in which the provider is "dissatisfied with a final determination of the . . . fiscal intermediary," and reasoning that petitioners could not be dissatisfied when they had effected a self-disallowance of the claims. The District Court, in disagreement with the Board's reasoning, held that the Board should have exercised jurisdiction over the matter. Bethesda Hospital v. Heckler, 609 F. Supp. 1360, 1368 (SD Ohio 1985).
The Secretary appealed to the United States Court of Appeals for the Sixth Circuit, which reversed the District Court. The Court of Appeals stated that "[w]ere we considering this issue as a matter of first impression, we may well have reached a different conclusion as to the advisability of requiring submission of statutory and/or constitutional challenges to a private insurance company as a condition precedent to further administrative as well as judicial review of the Secretary's regulations." Bethesda Hospital v. Secretary of Health and Human Services, 810 F.2d 558, 562 (1987). The court found itself bound, however, by the decision of a prior panel in Baptist Hospital East v. Secretary of Health and Human Services, 802 F.2d 860 (1986), where it was held that the Board had properly "refused to exercise jurisdiction over those claims by providers who had self-disallowed reimbursement and had failed to challenge the Secretary's regulations before the fiscal intermediary." Bethesda Hospital v. Secretary of Health and Human Services, supra, at 561. We granted certiorari, 484 U.S. 813 (1987), *403 to resolve a conflict among the Courts of Appeals.[1] We now reverse.
II
The plain meaning of the statute decides the issue presented. See INS v. Cardoza-Fonseca, 480 U.S. 421, 432, and n. 12 (1987); Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-843 (1984). The parties agree that § 1395oo(a) addresses the circumstances in which a provider may invoke the Board's jurisdiction. To the extent pertinent here, § 1395oo(a) states that a provider may obtain a hearing before the Board with respect to its cost report if
"(1) such provider
"(A)(i) is dissatisfied with a final determination of . . . its fiscal intermediary . . . as to the amount of total program reimbursement due the provider . . . for the period covered by such report . . .
.....
"(2) the amount in controversy is $10,000 or more, and
*404 "(3) such provider files a request for a hearing within 180 days . . . ." 42 U.S. C. § 1395oo(a) (1982 ed. and Supp. III).
The Secretary contends that the requirement that a provider be "dissatisfied with a final determination of . . . its fiscal intermediary" necessarily incorporates an exhaustion requirement. In the Secretary's view, a provider's right to a hearing before the Board extends only to claims presented to a fiscal intermediary because the provider cannot be "dissatisfied" with the intermediary's decision to award the amounts requested in the provider's cost report. Petitioners counter that it would have been improper, or at least irregular, to submit a claim for cost reimbursement in a manner prohibited by the regulations, and that it was correct to raise their challenge in the first instance by presenting the matter to the Board.
The strained interpretation offered by the Secretary is inconsistent with the express language of the statute. We agree that, under subsection (a)(1)(A)(i), a provider's dissatisfaction with the amount of its total reimbursement is a condition to the Board's jurisdiction. It is clear, however, that the submission of a cost report in full compliance with the unambiguous dictates of the Secretary's rules and regulations does not, by itself, bar the provider from claiming dissatisfaction with the amount of reimbursement allowed by those regulations. No statute or regulation expressly mandates that a challenge to the validity of a regulation be submitted first to the fiscal intermediary. Providers know that, under the statutory scheme, the fiscal intermediary is confined to the mere application of the Secretary's regulations, that the intermediary is without power to award reimbursement except as the regulations provide, and that any attempt to persuade the intermediary to do otherwise would be futile.[2] Thus, petitioners stand on different ground *405 than do providers who bypass a clearly prescribed exhaustion requirement or who fail to request from the intermediary reimbursement for all costs to which they are entitled under applicable rules. While such defaults might well establish that a provider was satisfied with the amounts requested in its cost report and awarded by the fiscal intermediary, those circumstances are not presented here. We conclude that petitioners could claim dissatisfaction, within the meaning of the statute, without incorporating their challenge in the cost reports filed with their fiscal intermediaries.
While the express language of subsection (a) requires the result we reach in the present case, our conclusion is also supported by the language and design of the statute as a whole. Cf. Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 220-221 (1986). Section 1395oo(d), which sets forth the powers and duties of the Board once its jurisdiction has been invoked,[3] explicitly provides that in making its decision whether to affirm, modify, or reverse the intermediary's decision, the Board can "make any other revisions on matters covered by such cost report . . . even though such matters were not considered by the intermediary in making such final *406 determination." This language allows the Board, once it obtains jurisdiction pursuant to subsection (a), to review and revise a cost report with respect to matters not contested before the fiscal intermediary. The only limitation prescribed by Congress is that the matter must have been "covered by such cost report," that is, a cost or expense that was incurred within the period for which the cost report was filed, even if such cost or expense was not expressly claimed.
Neither the fiscal intermediary nor the Board has the authority to declare regulations invalid.[4] It does not follow, however, that the statute treats the two entities alike or that it requires the provider to announce its regulatory challenge at each level; for the Board has a statutory function that the fiscal intermediary does not have. Subsection (f)(1) grants providers the right to obtain judicial review of an action of the fiscal intermediary, but the predicate is that the Board must first make a determination that it is without authority to decide the matter because the provider's claim involves a question of law or regulations.[5] It is this determination of *407 the Board, or alternatively the Board's failure to act, that triggers the right of judicial review.
The Secretary notes that subsection (f)(1) posits review of an "action of the fiscal intermediary," and argues that without presenting the intermediary with the challenge to the regulation there can be no action to review. The statute provides, however, that the intermediary has no authority to deviate from the rules and regulations and that the Board, not the fiscal intermediary, is to make the determination that it lacks the requisite authority to consider the validity of the regulation. Under this statutory scheme, requiring submission of the regulatory challenge to the fiscal intermediary is quite unnecessary. The Board has a role in shaping the controversy that is subject to judicial review; the fiscal intermediary does not.
*408 Finally, the Secretary's proffered requirement of notice to the fiscal intermediary is internally inconsistent. The Secretary cannot maintain, on the one hand, that it is of vital importance to present challenges to the Secretary's regulations in the first instance to the fiscal intermediary and, on the other, acknowledge that a mere cover letter would suffice because the fiscal intermediary lacks authority to rule on the challenge. By objecting to the regulation in the first instance in proceedings before the Board, the petitioners protected their right to judicial review.
We hold that the plain language of the statute demonstrates that the Provider Reimbursement Review Board had jurisdiction to entertain this action. 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.
| Under the Medicare program, Title XVIII of the Social Security Act, 42 U.S. C. 1395 et seq. (1982 ed. and Supp. III), certain qualified providers of health care services are reimbursed by the Secretary of Health and Human for the reasonable cost of providing covered services to Medicare beneficiaries. Each such provider submits a cost report at the end of the year to a fiscal intermediary, usually a private insurance company acting as an agent *401 for the Secretary. The fiscal intermediary audits the cost report and issues a Notice of Program Reimbursement specifying the amount of reimbursement due to the provider and explaining any adjustments. A provider may appeal the intermediary's final determination to the Provider Reimbursement Review Board and, under certain circumstances, may obtain a hearing from the Board. The Board is authorized to affirm, modify, or reverse intermediary decisions. The Secretary, either on his own motion or on request of the provider, may review the matter further, and any provider that remains dissatisfied with a final decision of the Board or Secretary may seek review in a United States district court. 1395oo(a), (d), (f). This case requires us to decide whether the Board may decline to consider a provider's challenge to one of the Secretary's regulations on the ground that the provider failed to contest the regulation's validity in the cost report submitted to its fiscal intermediary. I Petitioners Bethesda Hospital Association and Deaconess Hospital of Cincinnati are Ohio entities that operate hospitals in that State. Bethesda and Deaconess joined with some 27 other hospitals to challenge a 1979 regulation promulgated by the Secretary, which disallowed certain claims for malpractice insurance premium costs. We are not concerned here with the merits of the challenge to the 1979 regulation; rather, we must decide whether the Board had jurisdiction to consider the issue. In their cost reports for 1980, petitioners followed the 1979 regulation in their apportionment of malpractice insurance costs and thereby effected, in the lexicon of the Medicare program, a "self-disallowance" of malpractice insurance costs in excess of those allowed by the 1979 regulation. Petitioners later filed a timely request for a hearing before the Board, challenging the validity of the malpractice regulation and *402 seeking reimbursement for malpractice costs in accordance with the pre-1979 methodology. Because the amounts had been self-disallowed in the reports filed with the fiscal intermediary, however, the Board determined that it was without jurisdiction to hear petitioners' claims. The Board held, in essence, that a statutory condition to its jurisdiction had not been met, stating that its authority to grant hearings is limited to cases in which the provider is "dissatisfied with a final determination of the fiscal intermediary," and reasoning that petitioners could not be dissatisfied when they had effected a self-disallowance of the claims. The District Court, in disagreement with the Board's reasoning, held that the Board should have exercised jurisdiction over the matter. Bethesda The Secretary appealed to the United States Court of Appeals for the Sixth Circuit, which reversed the District Court. The Court of Appeals stated that "[w]ere we considering this issue as a matter of first impression, we may well have reached a different conclusion as to the advisability of requiring submission of statutory and/or constitutional challenges to a private insurance company as a condition precedent to further administrative as well as judicial review of the Secretary's regulations." Bethesda The court found itself bound, however, by the decision of a prior panel in Baptist Hospital where it was held that the Board had properly "refused to exercise jurisdiction over those claims by providers who had self-disallowed reimbursement and had failed to challenge the Secretary's regulations before the fiscal intermediary." Bethesda We granted certiorari, *403 to resolve a conflict among the Courts of Appeals.[1] We now reverse. II The plain meaning of the statute decides the issue presented. See ; Chevron U. S. A. The parties agree that 1395oo(a) addresses the circumstances in which a provider may invoke the Board's jurisdiction. To the extent pertinent here, 1395oo(a) states that a provider may obtain a hearing before the Board with respect to its cost report if "(1) such provider "(A)(i) is dissatisfied with a final determination of its fiscal intermediary as to the amount of total program reimbursement due the provider for the period covered by such report "(2) the amount in controversy is $10,000 or more, and *404 "(3) such provider files a request for a hearing within 180 days" 42 U.S. C. 1395oo(a) (1982 ed. and Supp. III). The Secretary contends that the requirement that a provider be "dissatisfied with a final determination of its fiscal intermediary" necessarily incorporates an exhaustion requirement. In the Secretary's view, a provider's right to a hearing before the Board extends only to claims presented to a fiscal intermediary because the provider cannot be "dissatisfied" with the intermediary's decision to award the amounts requested in the provider's cost report. Petitioners counter that it would have been improper, or at least irregular, to submit a claim for cost reimbursement in a manner prohibited by the regulations, and that it was correct to raise their challenge in the first instance by presenting the matter to the Board. The strained interpretation offered by the Secretary is inconsistent with the express language of the statute. We agree that, under subsection (a)(1)(A)(i), a provider's dissatisfaction with the amount of its total reimbursement is a condition to the Board's jurisdiction. It is clear, however, that the submission of a cost report in full compliance with the unambiguous dictates of the Secretary's rules and regulations does not, by itself, bar the provider from claiming dissatisfaction with the amount of reimbursement allowed by those regulations. No statute or regulation expressly mandates that a challenge to the validity of a regulation be submitted first to the fiscal intermediary. Providers know that, under the statutory scheme, the fiscal intermediary is confined to the mere application of the Secretary's regulations, that the intermediary is without power to award reimbursement except as the regulations provide, and that any attempt to persuade the intermediary to do otherwise would be futile.[2] Thus, petitioners stand on different ground *405 than do providers who bypass a clearly prescribed exhaustion requirement or who fail to request from the intermediary reimbursement for all costs to which they are entitled under applicable rules. While such defaults might well establish that a provider was satisfied with the amounts requested in its cost report and awarded by the fiscal intermediary, those circumstances are not presented here. We conclude that petitioners could claim dissatisfaction, within the meaning of the statute, without incorporating their challenge in the cost reports filed with their fiscal intermediaries. While the express language of subsection (a) requires the result we reach in the present case, our conclusion is also supported by the language and design of the statute as a whole. Cf. Offshore Logistics, Section 1395oo(d), which sets forth the powers and duties of the Board once its jurisdiction has been invoked,[3] explicitly provides that in making its decision whether to affirm, modify, or reverse the intermediary's decision, the Board can "make any other revisions on matters covered by such cost report even though such matters were not considered by the intermediary in making such final *406 determination." This language allows the Board, once it obtains jurisdiction pursuant to subsection (a), to review and revise a cost report with respect to matters not contested before the fiscal intermediary. The only limitation prescribed by Congress is that the matter must have been "covered by such cost report," that is, a cost or expense that was incurred within the period for which the cost report was filed, even if such cost or expense was not expressly claimed. Neither the fiscal intermediary nor the Board has the authority to declare regulations invalid.[4] It does not follow, however, that the statute treats the two entities alike or that it requires the provider to announce its regulatory challenge at each level; for the Board has a statutory function that the fiscal intermediary does not have. Subsection (f)(1) grants providers the right to obtain judicial review of an action of the fiscal intermediary, but the predicate is that the Board must first make a determination that it is without authority to decide the matter because the provider's claim involves a question of law or regulations.[5] It is this determination of *407 the Board, or alternatively the Board's failure to act, that triggers the right of judicial review. The Secretary notes that subsection (f)(1) posits review of an "action of the fiscal intermediary," and argues that without presenting the intermediary with the challenge to the regulation there can be no action to review. The statute provides, however, that the intermediary has no authority to deviate from the rules and regulations and that the Board, not the fiscal intermediary, is to make the determination that it lacks the requisite authority to consider the validity of the regulation. Under this statutory scheme, requiring submission of the regulatory challenge to the fiscal intermediary is quite unnecessary. The Board has a role in shaping the controversy that is subject to judicial review; the fiscal intermediary does not. *408 Finally, the Secretary's proffered requirement of notice to the fiscal intermediary is internally inconsistent. The Secretary cannot maintain, on the one hand, that it is of vital importance to present challenges to the Secretary's regulations in the first instance to the fiscal intermediary and, on the other, acknowledge that a mere cover letter would suffice because the fiscal intermediary lacks authority to rule on the challenge. By objecting to the regulation in the first instance in proceedings before the Board, the petitioners protected their right to judicial review. We hold that the plain language of the statute demonstrates that the Provider Reimbursement Review Board had jurisdiction to entertain this action. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. |
Justice Sotomayor | majority | false | Lightfoot v. Cendant Mortgage Corp | 2017-01-18T00:00:00 | null | https://www.courtlistener.com/opinion/4374578/lightfoot-v-cendant-mortgage-corp/ | https://www.courtlistener.com/api/rest/v3/clusters/4374578/ | 2,017 | 2016-014 | 2 | 8 | 0 | 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 Powell | dissenting | false | Patsy v. Board of Regents of Fla. | 1982-06-21T00:00:00 | null | https://www.courtlistener.com/opinion/110753/patsy-v-board-of-regents-of-fla/ | https://www.courtlistener.com/api/rest/v3/clusters/110753/ | 1,982 | 1981-131 | 2 | 7 | 2 | The Court holds that the limitations on federal judicial power embodied in the Eleventh Amendment and in the doctrine of sovereign immunity are not jurisdictional. I consider *520 this holding to be a serious departure from established constitutional doctrine.
I dissent also from the Court's rejection of the rule of "flexible" exhaustion of state administrative remedies developed and stated persuasively by the Court of Appeals for the Fifth Circuit, sitting en banc. In disagreeing with the 17 judges of the Court of Appeals who adopted the flexible exhaustion principle, this Court places mistaken reliance on the Civil Rights of Institutionalized Persons Act, 42 U.S. C. § 1997 et seq. (1976 ed., Supp. IV). I disagree with both portions of the Court's holding and therefore dissent.
I. The Eleventh Amendment.[1]
A
In this "reverse discrimination" action, petitioner, an employee of the Florida International University, brought suit under 42 U.S. C. § 1983 against the Board of Regents of the State of Florida.[2] She did not name the individual Regents as defendants. She sued for $500,000 in damages, and for injunctive and other equitable relief. See ante, at 498-499, n. 2. The Board filed a motion to dismiss, arguing that petitioner's suit was premature in light of her failure to exhaust available administrative remedies. The District Court agreed and granted the motion to dismiss.
*521 On petitioner's appeal, the Board added the bar of the Eleventh Amendment to its defense.[3] It argued that as an instrumentality of the State, the Board could not be subjected to suit in federal court absent a waiver of immunity.[4]*522 And it asserted that there had been no waiver. Although the Board of Regents was created as a body corporate with power "to sue and be sued . . . to plead and be impleaded in all courts of law and equity," Fla. Stat. § 240.205(4)(1) (1981), it is well established that language such as this does not operate to waive the defense of the Eleventh Amendment.[5] In *523 reply, petitioner argued that whether or not the statute creating the Board amounted to a waiver and petitioner believed that it did the Eleventh Amendment simply was irrelevant to the equitable claims she had lodged against the State. See Reply Brief for Petitioner 3-4.
Neither the Court of Appeals panel nor the Court of Appeals en banc addressed the Board's Eleventh Amendment defense. They directed their attention solely to the question of exhaustion of administrative remedies. The panel held that there was no exhaustion requirement in § 1983 suits and remanded to the District Court for consideration of the Board's Eleventh Amendment argument. Patsy v. Florida International University, 612 F.2d 946 (1980). The Court of Appeals, sitting en banc, reversed, holding that § 1983 plaintiffs must exhaust available and reasonable administrative remedies. Patsy v. Florida International University, 634 F.2d 900 (1981). Again the court did not consider the Board's Eleventh Amendment defense.
The Eleventh Amendment question was raised before this Court, at the first opportunity after the Court of Appeals' decision, in the Board's response to the petition for writ of certiorari. The Board argued, as it had on appeal, that it was an arm of the State and that it had not waived its immunity from suit in federal court.[6] Again petitioner answered that *524 at most the Eleventh Amendment defense would bar her claim for damages. And, even as to this claim, petitioner now argued that the Amendment would not bar damages if the Board could meet the claim out of its "own funds" e. g., from gifts and bequests rather than from the state treasury. These arguments were repeated at oral argument.[7]
B
The Court views the jurisdictional question presented by the Eleventh Amendment as if it were of little or no importance. Its entire discussion of the question is relegated to a conclusory note at the end of the opinion. See ante, at 515-516, n. 19. The Court concedes that the Amendment and the bar of sovereign immunity are "jurisdictional," but only in the sense that the State may raise the claim at any point in the proceedings. The statement is then made that the Amendment is not jurisdictional "in the sense that it must be raised and decided by this Court on its own motion." Ibid.[8] The Court cites to no authority in support of this statement,[9] and *525 it would be surprising if any existed. The reason that the Eleventh Amendment question may be raised at any point in the proceedings is precisely because it places limits on the basic authority of federal courts to entertain suits against a State. The history and text of the Eleventh Amendment, the principle of sovereign immunity exemplified by it, and the well-established precedents of this Court make clear that today's decision misconceives our jurisdiction and the purpose of this Amendment.
A basic principle of our constitutional system is that the federal courts are courts of limited jurisdiction. Their authority extends only to those matters within the judicial power of the United States as defined by the Constitution. In language that could not be clearer, the Eleventh Amendment removes from the judicial power, as set forth in Art. III, suits "commenced or prosecuted against one of the United States." When an Amendment to the Constitution states in plain language that "the judicial power of the United States shall not be construed to extend" to suits against a State, from what source does the Court today derive its jurisdiction? The Court's "back-of-the-hand" treatment of this threshold issue offers no answer. Questions of jurisdiction and of the legitimate exercise of power are fundamental in our federal constitutional system.[10]
*526 C
The Eleventh Amendment was adopted as a response to this Court's assumption of original jurisdiction in a suit brought against the State of Georgia. Chisholm v. Georgia, 2 Dall. 419 (1793). Relying upon express language in Art. III extending the judicial power to controversies between a State and citizens of another State, the Court found that it had jurisdiction. The decision is said to have created a shock throughout the country. See Hans v. Louisiana, 134 U.S. 1, 11 (1890). The Amendment was adopted shortly thereafter, and the Court understood that it had been overruled: " `the amendment being constitutionally adopted, there could not be exercised any jurisdiction, in any case, past or future, in which a State was sued by the citizens of another State, or by citizens or subjects of any foreign state.' " Ibid.
In light of the history and wording of the Amendment, the Court has viewed the Amendment as placing explicit limits on the judicial power as defined by Art. III. See Nevada v. Hall, 440 U.S. 410, 421 (1979). But more than that, and beyond the express provisions of the Amendment, the Court has recognized that the Amendment stands for a principle of sovereign immunity by which the grant of authority in Art. III itself must be measured.[11] Thus, in Hans v. Louisiana, supra, the Court held that the federal judicial power did not extend to a suit against a nonconsenting State by one of its own citizens. Although the Eleventh Amendment by its terms does not apply to such suits, the Court found that *527 the language of the Amendment was but an illustration of a larger principle: Federal jurisdiction over suits against a State, absent consent, "was not contemplated by the Constitution when establishing the judicial power of the United States." Id., at 15.[12] See Smith v. Reeves, 178 U.S. 436 (1900).
Similarly, in Ex parte New York, 256 U.S. 490 (1921), the Court found that despite the Eleventh Amendment's specific reference to suits in "law or equity," the principle of sovereign immunity exemplified by the Amendment would not permit the extension of federal admiralty jurisdiction over a nonconsenting State. The Court applied the same approach in Monaco v. Mississippi, 292 U.S. 313 (1934), in which the Court refused to take jurisdiction over a suit against a State by a foreign state. On its face, Art. III provided jurisdiction over suits "between a State . . . and foreign States." Nor did the Eleventh Amendment specifically exempt the States from suit by a foreign state. Nevertheless, the Court concluded that the judicial power of the United States, granted by Art. III, did not extend so far: "We think that Madison correctly interpreted Clause one of § 2 of Article III of the Constitution as making provision for jurisdiction of a suit against a State by a foreign State in the event of the State's consent but not otherwise." Id., at 330.
In this case a resident of the State of Florida has sued a Board exercising a major function of the State's sovereign authority. As prior decisions have held, whether this case is viewed only under the Eleventh Amendment with its *528 explicit limitation on federal jurisdiction or under Art. III, the analysis must be the same. Absent consent, the "judicial power of the United States," as defined by Art. III and the Eleventh Amendment, simply does not extend to suits against one of the States by a citizen of that State:[13]
"That a State may not be sued without its consent is a fundamental rule of jurisprudence having so important a bearing upon the construction of the Constitution of the United States that it has become established by repeated decisions of this court that the entire judicial power granted by the Constitution does not embrace authority to entertain a suit brought by private parties against a State without consent given: not one brought by citizens of another State, or by citizens or subjects of a foreign State, because of the Eleventh Amendment; and not even one brought by its own citizens, because of the fundamental rule of which the Amendment is but an exemplification." Ex parte New York, supra, at 497 (emphasis added).
The Court does not distinguish these unquestioned precedents. They are wholly and inexplicably ignored. Quite *529 simply the Court today disregards controlling decisions and the explicit limitation on federal-court jurisdiction in Art. III and the Eleventh Amendment. The Court does recognize that the Eleventh Amendment is jurisdictional "in the sense" that the State may raise the bar of the Amendment for the first time on appeal. Yet the Court misses the point of this statement. The reason that the bar of the Amendment may be raised at any time as the Court previously has explained is precisely because it is jurisdictional:
"The objection to petitioner's suit as a violation of the Eleventh Amendment was first made and argued . . . in this Court. This was in time, however. The Eleventh Amendment declares a policy and sets forth an explicit limitation on federal judicial power of such compelling force that this Court will consider the issue arising under this Amendment . . . even though urged for the first time in this Court." Ford Motor Co. v. Department of Treasury of Indiana, 323 U.S. 459, 467 (1945).[14]
Despite these precedents, and apparently because of an unexplained anxiety to reach the exhaustion issue decided by the Court of Appeals, this Court remands the issue of its own jurisdiction to the courts below.
D
I believe that the Eleventh Amendment question must be addressed and that the answer could hardly be clearer. This is an action under § 1983.[15] Petitioner seeks relief from the *530 Board of Regents of the State of Florida, a major instrumentality or agency of the State. Petitioner's argument that the statute incorporating the Board should be understood to waive the Eleventh Amendment is foreclosed by numerous decisions of this Court and is unsupported by State law. See, e. g., Florida Dept. of Health v. Florida Nursing Home Assn., 450 U.S. 147 (1981); n. 5, supra. Similarly, petitioner's suggestion that the Eleventh Amendment does not bar her equitable claims against the Board must be rejected. The Amendment applies to suits "in law or equity." All suits against an unconsenting State whether for damages or injunctive relief are barred. See Cory v. White, ante, p. 85.[16] Finally, the rule in Ex parte Young, 209 U.S. 123 (1908), permitting a federal court to order state officials to obey federal law in the future, is simply irrelevant to this case.[17] Petitioner did not sue the members of the Board of *531 Regents. She sued the Board itself, an arm of the State of Florida.
In my view, the Eleventh Amendment and the principle of sovereign immunity exemplified by the Amendment and embodied in Art. III clearly bar the suit in this case. The Court's refusal to address the question of its own jurisdiction violates well-established precedents of this Court as well as the basic premise that federal courts are courts of limited jurisdiction. Even had the parties neglected to address the Eleventh Amendment question, it would have been our responsibility to consider it on our own motion. In fact, the question has been fully briefed to the Court of Appeals and *532 raised in this Court. See n. 8, supra. Cf. Sosna v. Iowa, 419 U.S. 393, 396, n. 2 (1975). I would dismiss this suit and vacate the decision of the Court of Appeals for lack of jurisdiction.
II. Exhaustion of Remedies.
In view of my belief that this case should be dismissed on jurisdictional grounds, I address the exhaustion question only briefly. Seventeen judges joined in the Court of Appeals' persuasive opinion adopting a rule of "flexible" exhaustion of administrative remedies in § 1983 suits. Other Courts of Appeals have adopted a similar rule. See, e. g., Eisen v. Eastman, 421 F.2d 560 (CA2 1969); Secret v. Brierton, 584 F.2d 823 (CA7 1978). The opinion for the en banc court carefully reviewed the exhaustion doctrine in general and as applied to § 1983 actions. It found that the prior decisions of this Court did not clearly decide the question.[18] See Barry v. Barchi, 443 U.S. 55, 63, n. 10 (1979); Gibson v. Berryhill, 411 U.S. 564, 575, n. 14 (1973). And it concluded that the exhaustion of adequate and appropriate state administrative remedies would promote the achievement of the rights protected by § 1983.
I agree with the Court of Appeals' opinion. The requirement that a § 1983 plaintiff exhaust adequate state administrative remedies was the accepted rule of law until quite recently. See Eisen v. Eastman, supra, at 567. The rule rests on sound considerations. It does not defeat federal-court jurisdiction, it merely defers it.[19] It permits the States *533 to correct violations through their own procedures, and it encourages the establishment of such procedures. It is consistent with the principles of comity that apply whenever federal courts are asked to review state action or supersede state proceedings. See Younger v. Harris, 401 U.S. 37 (1971).
Moreover, and highly relevant to the effective functioning of the overburdened federal court system, the rule conserves and supplements scarce judicial resources. In 1961, the year that Monroe v. Pape, 365 U.S. 167, was decided, only 270 civil rights actions were begun in the federal district courts. Annual Report of the Director of the Administrative Office of the U. S. Courts, 238 (1961). In 1981, over 30,000 such suits were commenced.[20] Annual Report of the Director of the Administrative Office of the U. S. Courts 63, 68 (1981). The result of this unprecedented increase in civil rights litigation is a heavy burden on the federal courts to the detriment of all federal-court litigants, including others who assert that their constitutional rights have been infringed.
The Court argues that past decisions of the Court categorically hold that there is no exhaustion requirement in § 1983 suits. But as the Court of Appeals demonstrates, and as the Court recognizes, many of these decisions can be explained as applications of traditional exceptions to the exhaustion requirement. See McNeese v. Board of Education, 373 U.S. 668 (1963). Other decisions speak to the question in an offhand and conclusory fashion without full briefing and argument. See Wilwording v. Swenson, 404 U.S. 249, 251 (1971) (unargued per curiam); Damico v. California, 389 U.S. 416 (1967) (unargued per curiam). Moreover, a categorical *534 no-exhaustion rule would seem inconsistent with the decision in Younger v. Harris, supra, prescribing abstention when state criminal proceedings are pending. At least where administrative proceedings are pending, Younger would seem to suggest the appropriateness of exhaustion. Cf. Gibson v. Berryhill, supra, at 574-575. Yet the Court today adopts a flat rule without exception.
The Court seeks to support its no-exhaustion rule with indications of congressional intent. Finding nothing directly on point in the history of the Civil Rights Act itself, the Court places primary reliance on the recent Civil Rights of Institutionalized Persons Act, 42 U.S. C. § 1997 et seq. (1976 ed., Supp. IV). This legislation was designed to authorize the Attorney General to initiate civil rights actions on behalf of institutionalized persons. § 1997a. The Act also placed certain limits on the existing authority of the Attorney General to intervene in suits begun by institutionalized persons. See § 1997c. In addition, in § 1997e, the Act sets forth an exhaustion requirement but only for § 1983 claims brought by prisoners.
On the basis of the exhaustion provision in § 1997e, and remarks primarily by Representative Kastenmeier, the Court contends that Congress has endorsed a general no-exhaustion rule. The irony in this reasoning should be obvious. A principal concern that prompted the Department of Justice to support, and the Congress to adopt, § 1997e was the vast increase in § 1983 suits brought by state prisoners in federal courts. There has been a year-by-year increase in these suits since the mid-1960's. The increase in fiscal 1981 over fiscal 1980 was some 26%, resulting in a total of 15,639 such suits filed in 1981 as compared with 12, 397 in 1980. The 1981 total constituted over 8.6% of the total federal district court civil docket. Although most of these cases present frivolous claims, many are litigated through the courts of appeals to this Court. The burden on the system fairly can be described as enormous with few, if any, benefits that would not *535 be available in meritorious cases if exhaustion of appropriate state administrative remedies were required prior to any federal-court litigation. It was primarily this problem that prompted enactment of § 1997e.[21]
Moreover, it is clear from the legislative history that Congress simply was not addressing the exhaustion problem in any general fashion. The concern focused on the problem of prisoner petitions. The new Act had a dual purpose in this respect. In addition to requiring prior exhaustion of adequate state remedies, Congress wished to authorize the Attorney General to act when necessary to protect the constitutional rights of prisoners, but at the same time minimize the need for federal action of any kind by requiring prior exhaustion. Both sponsors of the Act in the Senate made this clear. Senator Hatch explained § 1997e as follows:
"In actions relating to alleged violations of the constitutional rights of prisoners, such persons may be required to exhaust internal grievance procedures before the Attorney General can become involved pursuant to [the Act]." 126 Cong. Rec. 3716 (1980) (emphasis added).[22]
Senator Bayh, the author of the Act, described the exhaustion provision in similar terms:
*536 "[I]n the event of a prison inmate's rights being alleged to be violated . . . then before the Justice Department could intervene or initiate suits, the prison inmate or class of inmates would have to pursue all of their administrative remedies within the State law before the Justice Department could intervene under the provisions of [the Act]." Id., at 3970.
In short, in enacting the Civil Rights of Institutionalized Persons Act Congress was focusing on the powers of the Attorney General, and the particular question of prisoners' suits, not on the general question of exhaustion in § 1983 actions. Also revealing as to the limited purpose of § 1997e is Congress' consistent refusal to adopt legislation imposing a general no-exhaustion requirement. Thus, for example, in 1979, a bill was introduced into the Senate providing:
"No court of the United States shall stay or dismiss any civil action brought under this Act on the ground that the party bringing such action failed to exhaust the remedies available in the courts or the administrative agencies of any State." S. 1983, 96th Cong., 1st Sess., § 5 (1979).
The bill was never reported out of committee.
The requirement that plaintiffs exhaust available and adequate administrative remedies subject to well-developed exceptions is firmly established in virtually every area of the law. This is dictated in § 1983 actions by common sense, as well as by comity and federalism, where adequate state administrative remedies are available.
If the exhaustion question were properly before us, I would affirm the Court of Appeals.
| The Court holds that the limitations on federal judicial power embodied in the Eleventh Amendment and in the doctrine of sovereign immunity are not jurisdictional. I consider *20 this holding to be a serious departure from established constitutional doctrine. I dissent also from the Court's rejection of the rule of "flexible" exhaustion of state administrative remedies developed and stated persuasively by the Court of Appeals for the Fifth Circuit, sitting en banc. In disagreeing with the 17 judges of the Court of Appeals who adopted the flexible exhaustion principle, this Court places mistaken reliance on the Civil Rights of Institutionalized Persons Act, 42 U.S. C. 1997 et seq. (1976 ed., Supp. IV). I disagree with both portions of the Court's holding and therefore dissent. I. The Eleventh Amendment.[1] A In this "reverse discrimination" action, petitioner, an employee of the Florida International University, brought suit under 42 U.S. C. 193 against the Board of Regents of the State of Florida.[2] She did not name the individual Regents as defendants. She sued for $00,000 in damages, and for injunctive and other equitable relief. See ante, at 49-499, n. 2. The Board filed a motion to dismiss, arguing that petitioner's suit was premature in light of her failure to exhaust available administrative remedies. The District Court agreed and granted the motion to dismiss. *21 On petitioner's appeal, the Board added the bar of the Eleventh Amendment to its defense.[3] It argued that as an instrumentality of the State, the Board could not be subjected to suit in federal court absent a waiver of immunity.[4]*22 And it asserted that there had been no waiver. Although the Board of Regents was created as a body corporate with power "to sue and be sued to plead and be impleaded in all courts of law and equity," Fla. Stat. 240.20(4)(1) it is well established that language such as this does not operate to waive the defense of the Eleventh Amendment.[] In *23 reply, petitioner argued that whether or not the statute creating the Board amounted to a waiver and petitioner believed that it did the Eleventh Amendment simply was irrelevant to the equitable claims she had lodged against the State. See Reply Brief for Petitioner 3-4. Neither the Court of Appeals panel nor the Court of Appeals en banc addressed the Board's Eleventh Amendment defense. They directed their attention solely to the question of exhaustion of administrative remedies. The panel held that there was no exhaustion requirement in 193 suits and remanded to the District Court for consideration of the Board's Eleventh Amendment argument. The Court of Appeals, sitting en banc, reversed, holding that 193 plaintiffs must exhaust available and reasonable administrative remedies. Again the court did not consider the Board's Eleventh Amendment defense. The Eleventh Amendment question was raised before this Court, at the first opportunity after the Court of Appeals' decision, in the Board's response to the petition for writ of certiorari. The Board argued, as it had on appeal, that it was an arm of the State and that it had not waived its immunity from suit in federal court.[6] Again petitioner answered that *24 at most the Eleventh Amendment defense would bar her claim for damages. And, even as to this claim, petitioner now argued that the Amendment would not bar damages if the Board could meet the claim out of its "own funds" e. g., from gifts and bequests rather than from the state treasury. These arguments were repeated at oral argument.[7] B The Court views the jurisdictional question presented by the Eleventh Amendment as if it were of little or no importance. Its entire discussion of the question is relegated to a conclusory note at the end of the opinion. See ante, at 1-16, n. 19. The Court concedes that the Amendment and the bar of sovereign immunity are "jurisdictional," but only in the sense that the State may raise the claim at any point in the proceedings. The statement is then made that the Amendment is not jurisdictional "in the sense that it must be raised and decided by this Court on its own motion." [] The Court cites to no authority in support of this statement,[9] and *2 it would be surprising if any existed. The reason that the Eleventh Amendment question may be raised at any point in the proceedings is precisely because it places limits on the basic authority of federal courts to entertain suits against a State. The history and text of the Eleventh Amendment, the principle of sovereign immunity exemplified by it, and the well-established precedents of this Court make clear that today's decision misconceives our jurisdiction and the purpose of this Amendment. A basic principle of our constitutional system is that the federal courts are courts of limited jurisdiction. Their authority extends only to those matters within the judicial power of the United States as defined by the Constitution. In language that could not be clearer, the Eleventh Amendment removes from the judicial power, as set forth in Art. III, suits "commenced or prosecuted against one of the United States." When an Amendment to the Constitution states in plain language that "the judicial power of the United States shall not be construed to extend" to suits against a State, from what source does the Court today derive its jurisdiction? The Court's "back-of-the-hand" treatment of this threshold issue offers no answer. Questions of jurisdiction and of the legitimate exercise of power are fundamental in our federal constitutional system.[10] *26 C The Eleventh Amendment was adopted as a response to this Court's assumption of original jurisdiction in a suit brought against the State of Georgia. Relying upon express language in Art. III extending the judicial power to controversies between a State and citizens of another State, the Court found that it had jurisdiction. The decision is said to have created a shock throughout the country. See The Amendment was adopted shortly thereafter, and the Court understood that it had been overruled: " `the amendment being constitutionally adopted, there could not be exercised any jurisdiction, in any case, past or future, in which a State was sued by the citizens of another State, or by citizens or subjects of any foreign state.' " In light of the history and wording of the Amendment, the Court has viewed the Amendment as placing explicit limits on the judicial power as defined by Art. III. See But more than that, and beyond the express provisions of the Amendment, the Court has recognized that the Amendment stands for a principle of sovereign immunity by which the grant of authority in Art. III itself must be measured.[] Thus, in the Court held that the federal judicial power did not extend to a suit against a nonconsenting State by one of its own citizens. Although the Eleventh Amendment by its terms does not apply to such suits, the Court found that *27 the language of the Amendment was but an illustration of a larger principle: Federal jurisdiction over suits against a State, absent consent, "was not contemplated by the Constitution when establishing the judicial power of the United States."[12] See Similarly, in Ex parte New the Court found that despite the Eleventh Amendment's specific reference to suits in "law or equity," the principle of sovereign immunity exemplified by the Amendment would not permit the extension of federal admiralty jurisdiction over a nonconsenting State. The Court applied the same approach in in which the Court refused to take jurisdiction over a suit against a State by a foreign state. On its face, Art. III provided jurisdiction over suits "between a State and foreign States." Nor did the Eleventh Amendment specifically exempt the States from suit by a foreign state. Nevertheless, the Court concluded that the judicial power of the United States, granted by Art. III, did not extend so far: "We think that Madison correctly interpreted Clause one of 2 of Article III of the Constitution as making provision for jurisdiction of a suit against a State by a foreign State in the event of the State's consent but not otherwise." In this case a resident of the State of Florida has sued a Board exercising a major function of the State's sovereign authority. As prior decisions have held, whether this case is viewed only under the Eleventh Amendment with its *2 explicit limitation on federal jurisdiction or under Art. III, the analysis must be the same. Absent consent, the "judicial power of the United States," as defined by Art. III and the Eleventh Amendment, simply does not extend to suits against one of the States by a citizen of that State:[13] "That a State may not be sued without its consent is a fundamental rule of jurisprudence having so important a bearing upon the construction of the Constitution of the United States that it has become established by repeated decisions of this court that the entire judicial power granted by the Constitution does not embrace authority to entertain a suit brought by private parties against a State without consent given: not one brought by citizens of another State, or by citizens or subjects of a foreign State, because of the Eleventh Amendment; and not even one brought by its own citizens, because of the fundamental rule of which the Amendment is but an exemplification." Ex parte New The Court does not distinguish these unquestioned precedents. They are wholly and inexplicably ignored. Quite *29 simply the Court today disregards controlling decisions and the explicit limitation on federal-court jurisdiction in Art. III and the Eleventh Amendment. The Court does recognize that the Eleventh Amendment is jurisdictional "in the sense" that the State may raise the bar of the Amendment for the first time on appeal. Yet the Court misses the point of this statement. The reason that the bar of the Amendment may be raised at any time as the Court previously has explained is precisely because it is jurisdictional: "The objection to petitioner's suit as a violation of the Eleventh Amendment was first made and argued in this Court. This was in time, however. The Eleventh Amendment declares a policy and sets forth an explicit limitation on federal judicial power of such compelling force that this Court will consider the issue arising under this Amendment even though urged for the first time in this Court." Ford Motor[14] Despite these precedents, and apparently because of an unexplained anxiety to reach the exhaustion issue decided by the Court of Appeals, this Court remands the issue of its own jurisdiction to the courts below. D I believe that the Eleventh Amendment question must be addressed and that the answer could hardly be clearer. This is an action under 193.[1] Petitioner seeks relief from the *30 Board of Regents of the State of Florida, a major instrumentality or agency of the State. Petitioner's argument that the statute incorporating the Board should be understood to waive the Eleventh Amendment is foreclosed by numerous decisions of this Court and is unsupported by State law. See, e. g., Florida Dept. of ; n. Similarly, petitioner's suggestion that the Eleventh Amendment does not bar her equitable claims against the Board must be rejected. The Amendment applies to suits "in law or equity." All suits against an unconsenting State whether for damages or injunctive relief are barred. See Cory v. White, ante, p.[16] Finally, the rule in Ex parte Young, permitting a federal court to order state officials to obey federal law in the future, is simply irrelevant to this case.[17] Petitioner did not sue the members of the Board of *31 Regents. She sued the Board itself, an arm of the State of Florida. In my view, the Eleventh Amendment and the principle of sovereign immunity exemplified by the Amendment and embodied in Art. III clearly bar the suit in this case. The Court's refusal to address the question of its own jurisdiction violates well-established precedents of this Court as well as the basic premise that federal courts are courts of limited jurisdiction. Even had the parties neglected to address the Eleventh Amendment question, it would have been our responsibility to consider it on our own motion. In fact, the question has been fully briefed to the Court of Appeals and *32 raised in this Court. See n. Cf. (197). I would dismiss this suit and vacate the decision of the Court of Appeals for lack of jurisdiction. II. Exhaustion of Remedies. In view of my belief that this case should be dismissed on jurisdictional grounds, I address the exhaustion question only briefly. Seventeen judges joined in the Court of Appeals' persuasive opinion adopting a rule of "flexible" exhaustion of administrative remedies in 193 suits. Other Courts of Appeals have adopted a similar rule. See, e. g., F.2d 60 ; 4 F.2d 23 (CA7 197). The opinion for the en banc court carefully reviewed the exhaustion doctrine in general and as applied to 193 actions. It found that the prior decisions of this Court did not clearly decide the question.[1] See 443 U.S. ; 4 U.S. 64, 7, n. 14 And it concluded that the exhaustion of adequate and appropriate state administrative remedies would promote the achievement of the rights protected by 193. I agree with the Court of Appeals' opinion. The requirement that a 193 plaintiff exhaust adequate state administrative remedies was the accepted rule of law until quite recently. See at 67. The rule rests on sound considerations. It does not defeat federal-court jurisdiction, it merely defers it.[19] It permits the States *33 to correct violations through their own procedures, and it encourages the establishment of such procedures. It is consistent with the principles of comity that apply whenever federal courts are asked to review state action or supersede state proceedings. See Moreover, and highly relevant to the effective functioning of the overburdened federal court system, the rule conserves and supplements scarce judicial resources. In 1961, the year that 36 U.S. 167, was decided, only 270 civil rights actions were begun in the federal district courts. Annual Report of the Director of the Administrative Office of the U. S. Courts, 23 In over 30,000 such suits were commenced.[20] Annual Report of the Director of the Administrative Office of the U. S. Courts 63, 6 The result of this unprecedented increase in civil rights litigation is a heavy burden on the federal courts to the detriment of all federal-court litigants, including others who assert that their constitutional rights have been infringed. The Court argues that past decisions of the Court categorically hold that there is no exhaustion requirement in 193 suits. But as the Court of Appeals demonstrates, and as the Court recognizes, many of these decisions can be explained as applications of traditional exceptions to the exhaustion requirement. See 373 U.S. 66 Other decisions speak to the question in an offhand and conclusory fashion without full briefing and argument. See 21 ; 39 U.S. 416 Moreover, a categorical *34 no-exhaustion rule would seem inconsistent with the decision in prescribing abstention when state criminal proceedings are pending. At least where administrative proceedings are pending, Younger would seem to suggest the appropriateness of exhaustion. Cf. at 74-7. Yet the Court today adopts a flat rule without exception. The Court seeks to support its no-exhaustion rule with indications of congressional intent. Finding nothing directly on point in the history of the Civil Rights Act itself, the Court places primary reliance on the recent Civil Rights of Institutionalized Persons Act, 42 U.S. C. 1997 et seq. (1976 ed., Supp. IV). This legislation was designed to authorize the Attorney General to initiate civil rights actions on behalf of institutionalized persons. 1997a. The Act also placed certain limits on the existing authority of the Attorney General to intervene in suits begun by institutionalized persons. See 1997c. In addition, in 1997e, the Act sets forth an exhaustion requirement but only for 193 claims brought by prisoners. On the basis of the exhaustion provision in 1997e, and remarks primarily by Representative Kastenmeier, the Court contends that Congress has endorsed a general no-exhaustion rule. The irony in this reasoning should be obvious. A principal concern that prompted the Department of Justice to support, and the Congress to adopt, 1997e was the vast increase in 193 suits brought by state prisoners in federal courts. There has been a year-by-year increase in these suits since the mid-1960's. The increase in fiscal over fiscal was some 26%, resulting in a total of 1,639 such suits filed in as compared with 12, 397 in The total constituted over6% of the total federal district court civil docket. Although most of these cases present frivolous claims, many are litigated through the courts of appeals to this Court. The burden on the system fairly can be described as enormous with few, if any, benefits that would not *3 be available in meritorious cases if exhaustion of appropriate state administrative remedies were required prior to any federal-court litigation. It was primarily this problem that prompted enactment of 1997e.[21] Moreover, it is clear from the legislative history that Congress simply was not addressing the exhaustion problem in any general fashion. The concern focused on the problem of prisoner petitions. The new Act had a dual purpose in this respect. In addition to requiring prior exhaustion of adequate state remedies, Congress wished to authorize the Attorney General to act when necessary to protect the constitutional rights of prisoners, but at the same time minimize the need for federal action of any kind by requiring prior exhaustion. Both sponsors of the Act in the Senate made this clear. Senator Hatch explained 1997e as follows: "In actions relating to alleged violations of the constitutional rights of prisoners, such persons may be required to exhaust internal grievance procedures before the Attorney General can become involved pursuant to [the Act]." 126 Cong. Rec. 3716[22] Senator Bayh, the author of the Act, described the exhaustion provision in similar terms: *36 "[I]n the event of a prison inmate's rights being alleged to be violated then before the Justice Department could intervene or initiate suits, the prison inmate or class of inmates would have to pursue all of their administrative remedies within the State law before the Justice Department could intervene under the provisions of [the Act]." In short, in enacting the Civil Rights of Institutionalized Persons Act Congress was focusing on the powers of the Attorney General, and the particular question of prisoners' suits, not on the general question of exhaustion in 193 actions. Also revealing as to the limited purpose of 1997e is Congress' consistent refusal to adopt legislation imposing a general no-exhaustion requirement. Thus, for example, in 1979, a bill was introduced into the Senate providing: "No court of the United States shall stay or dismiss any civil action brought under this Act on the ground that the party bringing such action failed to exhaust the remedies available in the courts or the administrative agencies of any State." S. 193, 96th Cong., 1st Sess., The bill was never reported out of committee. The requirement that plaintiffs exhaust available and adequate administrative remedies subject to well-developed exceptions is firmly established in virtually every area of the law. This is dictated in 193 actions by common sense, as well as by comity and federalism, where adequate state administrative remedies are available. If the exhaustion question were properly before us, I would affirm the Court of Appeals. |
Justice Blackmun | majority | false | Roe v. Wade | 1973-01-22T00:00:00 | null | https://www.courtlistener.com/opinion/108713/roe-v-wade/ | https://www.courtlistener.com/api/rest/v3/clusters/108713/ | 1,973 | 1972-048 | 2 | 7 | 2 | This Texas federal appeal and its Georgia companion, Doe v. Bolton, post, p. 179, present constitutional challenges to state criminal abortion legislation. The Texas statutes under attack here are typical of those that have been in effect in many States for approximately a century. The Georgia statutes, in contrast, have a modern cast and are a legislative product that, to an extent at least, obviously reflects the influences of recent attitudinal change, of advancing medical knowledge and techniques, and of new thinking about an old issue.
We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One's philosophy, one's experiences, one's exposure to the raw edges of human existence, one's religious training, one's attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one's thinking and conclusions about abortion.
In addition, population growth, pollution, poverty, and racial overtones tend to complicate and not to simplify the problem.
Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and of predilection. We seek earnestly to do this, and, because we do, we *117 have inquired into, and in this opinion place some emphasis upon, medical and medical-legal history and what that history reveals about man's attitudes toward the abortion procedure over the centuries. We bear in mind, too, Mr. Justice Holmes' admonition in his nowvindicated dissent in Lochner v. New York, 198 U.S. 45, 76 (1905):
"[The Constitution] is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States."
I
The Texas statutes that concern us here are Arts. 1191-1194 and 1196 of the State's Penal Code.[1] These make it a crime to "procure an abortion," as therein *118 defined, or to attempt one, except with respect to "an abortion procured or attempted by medical advice for the purpose of saving the life of the mother." Similar statutes are in existence in a majority of the States.[2]
*119 Texas first enacted a criminal abortion statute in 1854. Texas Laws 1854, c. 49, § 1, set forth in 3 H. Gammel, Laws of Texas 1502 (1898). This was soon modified into language that has remained substantially unchanged to the present time. See Texas Penal Code of 1857, c. 7, Arts. 531-536; G. Paschal, Laws of Texas, Arts. 2192-2197 (1866); Texas Rev. Stat., c. 8, Arts. 536-541 (1879); Texas Rev. Crim. Stat., Arts. 1071-1076 (1911). The final article in each of these compilations provided the same exception, as does the present Article 1196, for an abortion by "medical advice for the purpose of saving the life of the mother."[3]
*120 II
Jane Roe,[4] a single woman who was residing in Dallas County, Texas, instituted this federal action in March 1970 against the District Attorney of the county. She sought a declaratory judgment that the Texas criminal abortion statutes were unconstitutional on their face, and an injunction restraining the defendant from enforcing the statutes.
Roe alleged that she was unmarried and pregnant; that she wished to terminate her pregnancy by an abortion "performed by a competent, licensed physician, under safe, clinical conditions"; that she was unable to get a "legal" abortion in Texas because her life did not appear to be threatened by the continuation of her pregnancy; and that she could not afford to travel to another jurisdiction in order to secure a legal abortion under safe conditions. She claimed that the Texas statutes were unconstitutionally vague and that they abridged her right of personal privacy, protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. By an amendment to her complaint Roe purported to sue "on behalf of herself and all other women" similarly situated.
James Hubert Hallford, a licensed physician, sought and was granted leave to intervene in Roe's action. In his complaint he alleged that he had been arrested previously for violations of the Texas abortion statutes and *121 that two such prosecutions were pending against him. He described conditions of patients who came to him seeking abortions, and he claimed that for many cases he, as a physician, was unable to determine whether they fell within or outside the exception recognized by Article 1196. He alleged that, as a consequence, the statutes were vague and uncertain, in violation of the Fourteenth Amendment, and that they violated his own and his patients' rights to privacy in the doctor-patient relationship and his own right to practice medicine, rights he claimed were guaranteed by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.
John and Mary Doe,[5] a married couple, filed a companion complaint to that of Roe. They also named the District Attorney as defendant, claimed like constitutional deprivations, and sought declaratory and injunctive relief. The Does alleged that they were a childless couple; that Mrs. Doe was suffering from a "neural-chemical" disorder; that her physician had "advised her to avoid pregnancy until such time as her condition has materially improved" (although a pregnancy at the present time would not present "a serious risk" to her life); that, pursuant to medical advice, she had discontinued use of birth control pills; and that if she should become pregnant, she would want to terminate the pregnancy by an abortion performed by a competent, licensed physician under safe, clinical conditions. By an amendment to their complaint, the Does purported to sue "on behalf of themselves and all couples similarly situated."
The two actions were consolidated and heard together by a duly convened three-judge district court. The suits thus presented the situations of the pregnant single woman, the childless couple, with the wife not pregnant, *122 and the licensed practicing physician, all joining in the attack on the Texas criminal abortion statutes. Upon the filing of affidavits, motions were made for dismissal and for summary judgment. The court held that Roe and members of her class, and Dr. Hallford, had standing to sue and presented justiciable controversies, but that the Does had failed to allege facts sufficient to state a present controversy and did not have standing. It concluded that, with respect to the requests for a declaratory judgment, abstention was not warranted. On the merits, the District Court held that the "fundamental right of single women and married persons to choose whether to have children is protected by the Ninth Amendment, through the Fourteenth Amendment," and that the Texas criminal abortion statutes were void on their face because they were both unconstitutionally vague and constituted an overbroad infringement of the plaintiffs' Ninth Amendment rights. The court then held that abstention was warranted with respect to the requests for an injunction. It therefore dismissed the Does' complaint, declared the abortion statutes void, and dismissed the application for injunctive relief. 314 F. Supp. 1217, 1225 (ND Tex. 1970).
The plaintiffs Roe and Doe and the intervenor Hallford, pursuant to 28 U.S. C. § 1253, have appealed to this Court from that part of the District Court's judgment denying the injunction. The defendant District Attorney has purported to cross-appeal, pursuant to the same statute, from the court's grant of declaratory relief to Roe and Hallford. Both sides also have taken protective appeals to the United States Court of Appeals for the Fifth Circuit. That court ordered the appeals held in abeyance pending decision here. We postponed decision on jurisdiction to the hearing on the merits. 402 U.S. 941 (1971).
*123 III
It might have been preferable if the defendant, pursuant to our Rule 20, had presented to us a petition for certiorari before judgment in the Court of Appeals with respect to the granting of the plaintiffs' prayer for declaratory relief. Our decisions in Mitchell v. Donovan, 398 U.S. 427 (1970), and Gunn v. University Committee, 399 U.S. 383 (1970), are to the effect that § 1253 does not authorize an appeal to this Court from the grant or denial of declaratory relief alone. We conclude, nevertheless, that those decisions do not foreclose our review of both the injunctive and the declaratory aspects of a case of this kind when it is properly here, as this one is, on appeal under § 1253 from specific denial of injunctive relief, and the arguments as to both aspects are necessarily identical. See Carter v. Jury Comm'n, 396 U.S. 320 (1970); Florida Lime Growers v. Jacobsen, 362 U.S. 73, 80-81 (1960). It would be destructive of time and energy for all concerned were we to rule otherwise. Cf. Doe v. Bolton, post, p. 179.
IV
We are next confronted with issues of justiciability, standing, and abstention. Have Roe and the Does established that "personal stake in the outcome of the controversy," Baker v. Carr, 369 U.S. 186, 204 (1962), that insures that "the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution," Flast v. Cohen, 392 U.S. 83, 101 (1968), and Sierra Club v. Morton, 405 U.S. 727, 732 (1972)? And what effect did the pendency of criminal abortion charges against Dr. Hallford in state court have upon the propriety of the federal court's granting relief to him as a plaintiff-intervenor?
*124 A. Jane Roe. Despite the use of the pseudonym, no suggestion is made that Roe is a fictitious person. For purposes of her case, we accept as true, and as established, her existence; her pregnant state, as of the inception of her suit in March 1970 and as late as May 21 of that year when she filed an alias affidavit with the District Court; and her inability to obtain a legal abortion in Texas.
Viewing Roe's case as of the time of its filing and thereafter until as late as May, there can be little dispute that it then presented a case or controversy and that, wholly apart from the class aspects, she, as a pregnant single woman thwarted by the Texas criminal abortion laws, had standing to challenge those statutes. Abele v. Markle, 452 F.2d 1121, 1125 (CA2 1971); Crossen v. Breckenridge, 446 F.2d 833, 838-839 (CA6 1971); Poe v. Menghini, 339 F. Supp. 986, 990-991 (Kan. 1972). See Truax v. Raich, 239 U.S. 33 (1915). Indeed, we do not read the appellee's brief as really asserting anything to the contrary. The "logical nexus between the status asserted and the claim sought to be adjudicated," Flast v. Cohen, 392 U. S., at 102, and the necessary degree of contentiousness, Golden v. Zwickler, 394 U.S. 103 (1969), are both present.
The appellee notes, however, that the record does not disclose that Roe was pregnant at the time of the District Court hearing on May 22, 1970,[6] or on the following June 17 when the court's opinion and judgment were filed. And he suggests that Roe's case must now be moot because she and all other members of her class are no longer subject to any 1970 pregnancy.
*125 The usual rule in federal cases is that an actual controversy must exist at stages of appellate or certiorari review, and not simply at the date the action is initiated. United States v. Munsingwear, Inc., 340 U.S. 36 (1950); Golden v. Zwickler, supra; SEC v. Medical Committee for Human Rights, 404 U.S. 403 (1972).
But when, as here, pregnancy is a significant fact in the litigation, the normal 266-day human gestation period is so short that the pregnancy will come to term before the usual appellate process is complete. If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied. Our law should not be that rigid. Pregnancy often comes more than once to the same woman, and in the general population, if man is to survive, it will always be with us. Pregnancy provides a classic justification for a conclusion of nonmootness. It truly could be "capable of repetition, yet evading review." Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515 (1911). See Moore v. Ogilvie, 394 U.S. 814, 816 (1969); Carroll v. Princess Anne, 393 U.S. 175, 178-179 (1968); United States v. W. T. Grant Co., 345 U.S. 629, 632-633 (1953).
We, therefore, agree with the District Court that Jane Roe had standing to undertake this litigation, that she presented a justiciable controversy, and that the termination of her 1970 pregnancy has not rendered her case moot.
B. Dr. Hallford. The doctor's position is different. He entered Roe's litigation as a plaintiff-intervenor, alleging in his complaint that he:
"[I]n the past has been arrested for violating the Texas Abortion Laws and at the present time stands charged by indictment with violating said laws in the Criminal District Court of Dallas County, Texas to-wit: (1) The State of Texas vs. *126 James H. Hallford, No. C-69-5307-IH, and (2) The State of Texas vs. James H. Hallford, No. C-69-2524-H. In both cases the defendant is charged with abortion . . . ."
In his application for leave to intervene, the doctor made like representations as to the abortion charges pending in the state court. These representations were also repeated in the affidavit he executed and filed in support of his motion for summary judgment.
Dr. Hallford is, therefore, in the position of seeking, in a federal court, declaratory and injunctive relief with respect to the same statutes under which he stands charged in criminal prosecutions simultaneously pending in state court. Although he stated that he has been arrested in the past for violating the State's abortion laws, he makes no allegation of any substantial and immediate threat to any federally protected right that cannot be asserted in his defense against the state prosecutions. Neither is there any allegation of harassment or bad-faith prosecution. In order to escape the rule articulated in the cases cited in the next paragraph of this opinion that, absent harassment and bad faith, a defendant in a pending state criminal case cannot affirmatively challenge in federal court the statutes under which the State is prosecuting him, Dr. Hallford seeks to distinguish his status as a present state defendant from his status as a "potential future defendant" and to assert only the latter for standing purposes here.
We see no merit in that distinction. Our decision in Samuels v. Mackell, 401 U.S. 66 (1971), compels the conclusion that the District Court erred when it granted declaratory relief to Dr. Hallford instead of refraining from so doing. The court, of course, was correct in refusing to grant injunctive relief to the doctor. The reasons supportive of that action, however, are those expressed in Samuels v. Mackell, supra, and in Younger v. *127 Harris, 401 U.S. 37 (1971); Boyle v. Landry, 401 U.S. 77 (1971); Perez v. Ledesma, 401 U.S. 82 (1971); and Byrne v. Karalexis, 401 U.S. 216 (1971). See also Dombrowski v. Pfister, 380 U.S. 479 (1965). We note, in passing, that Younger and its companion cases were decided after the three-judge District Court decision in this case.
Dr. Hallford's complaint in intervention, therefore, is to be dismissed.[7] He is remitted to his defenses in the state criminal proceedings against him. We reverse the judgment of the District Court insofar as it granted Dr. Hallford relief and failed to dismiss his complaint in intervention.
C. The Does. In view of our ruling as to Roe's standing in her case, the issue of the Does' standing in their case has little significance. The claims they assert are essentially the same as those of Roe, and they attack the same statutes. Nevertheless, we briefly note the Does' posture.
Their pleadings present them as a childless married couple, the woman not being pregnant, who have no desire to have children at this time because of their having received medical advice that Mrs. Doe should avoid pregnancy, and for "other highly personal reasons." But they "fear . . . they may face the prospect of becoming *128 parents." And if pregnancy ensues, they "would want to terminate" it by an abortion. They assert an inability to obtain an abortion legally in Texas and, consequently, the prospect of obtaining an illegal abortion there or of going outside Texas to some place where the procedure could be obtained legally and competently.
We thus have as plaintiffs a married couple who have, as their asserted immediate and present injury, only an alleged "detrimental effect upon [their] marital happiness" because they are forced to "the choice of refraining from normal sexual relations or of endangering Mary Doe's health through a possible pregnancy." Their claim is that sometime in the future Mrs. Doe might become pregnant because of possible failure of contraceptive measures, and at that time in the future she might want an abortion that might then be illegal under the Texas statutes.
This very phrasing of the Does' position reveals its speculative character. Their alleged injury rests on possible future contraceptive failure, possible future pregnancy, possible future unpreparedness for parenthood, and possible future impairment of health. Any one or more of these several possibilities may not take place and all may not combine. In the Does' estimation, these possibilities might have some real or imagined impact upon their marital happiness. But we are not prepared to say that the bare allegation of so indirect an injury is sufficient to present an actual case or controversy. Younger v. Harris, 401 U. S., at 41-42; Golden v. Zwickler, 394 U. S., at 109-110; Abele v. Markle, 452 F. 2d, at 1124-1125; Crossen v. Breckenridge, 446 F. 2d, at 839. The Does' claim falls far short of those resolved otherwise in the cases that the Does urge upon us, namely, Investment Co. Institute v. Camp, 401 U.S. 617 (1971); Data Processing Service v. Camp, 397 U.S. 150 (1970); *129 and Epperson v. Arkansas, 393 U.S. 97 (1968). See also Truax v. Raich, 239 U.S. 33 (1915).
The Does therefore are not appropriate plaintiffs in this litigation. Their complaint was properly dismissed by the District Court, and we affirm that dismissal.
V
The principal thrust of appellant's attack on the Texas statutes is that they improperly invade a right, said to be possessed by the pregnant woman, to choose to terminate her pregnancy. Appellant would discover this right in the concept of personal "liberty" embodied in the Fourteenth Amendment's Due Process Clause; or in personal, marital, familial, and sexual privacy said to be protected by the Bill of Rights or its penumbras, see Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972); id., at 460 (WHITE, J., concurring in result); or among those rights reserved to the people by the Ninth Amendment, Griswold v. Connecticut, 381 U. S., at 486 (Goldberg, J., concurring). Before addressing this claim, we feel it desirable briefly to survey, in several aspects, the history of abortion, for such insight as that history may afford us, and then to examine the state purposes and interests behind the criminal abortion laws.
VI
It perhaps is not generally appreciated that the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage. Those laws, generally proscribing abortion or its attempt at any time during pregnancy except when necessary to preserve the pregnant woman's life, are not of ancient or even of common-law origin. Instead, they derive from statutory changes effected, for the most part, in the latter half of the 19th century.
*130 1. Ancient attitudes. These are not capable of precise determination. We are told that at the time of the Persian Empire abortifacients were known and that criminal abortions were severely punished.[8] We are also told, however, that abortion was practiced in Greek times as well as in the Roman Era,[9] and that "it was resorted to without scruple."[10] The Ephesian, Soranos, often described as the greatest of the ancient gynecologists, appears to have been generally opposed to Rome's prevailing free-abortion practices. He found it necessary to think first of the life of the mother, and he resorted to abortion when, upon this standard, he felt the procedure advisable.[11] Greek and Roman law afforded little protection to the unborn. If abortion was prosecuted in some places, it seems to have been based on a concept of a violation of the father's right to his offspring. Ancient religion did not bar abortion.[12]
2. The Hippocratic Oath. What then of the famous Oath that has stood so long as the ethical guide of the medical profession and that bears the name of the great Greek (460(?)-377(?) B. C.), who has been described *131 as the Father of Medicine, the "wisest and the greatest practitioner of his art," and the "most important and most complete medical personality of antiquity," who dominated the medical schools of his time, and who typified the sum of the medical knowledge of the past?[13] The Oath varies somewhat according to the particular translation, but in any translation the content is clear: "I will give no deadly medicine to anyone if asked, nor suggest any such counsel; and in like manner I will not give to a woman a pessary to produce abortion,"[14] or "I will neither give a deadly drug to anybody if asked for it, nor will I make a suggestion to this effect. Similarly, I will not give to a woman an abortive remedy."[15]
Although the Oath is not mentioned in any of the principal briefs in this case or in Doe v. Bolton, post, p. 179, it represents the apex of the development of strict ethical concepts in medicine, and its influence endures to this day. Why did not the authority of Hippocrates dissuade abortion practice in his time and that of Rome? The late Dr. Edelstein provides us with a theory:[16] The Oath was not uncontested even in Hippocrates' day; only the Pythagorean school of philosophers frowned upon the related act of suicide. Most Greek thinkers, on the other hand, commended abortion, at least prior to viability. See Plato, Republic, V, 461; Aristotle, Politics, VII, 1335b 25. For the Pythagoreans, however, it was a matter of dogma. For them the embryo was animate from the moment of conception, and abortion meant destruction of a living being. The abortion clause of the Oath, therefore, "echoes Pythagorean doctrines," *132 and "[i]n no other stratum of Greek opinion were such views held or proposed in the same spirit of uncompromising austerity."[17]
Dr. Edelstein then concludes that the Oath originated in a group representing only a small segment of Greek opinion and that it certainly was not accepted by all ancient physicians. He points out that medical writings down to Galen (A. D. 130-200) "give evidence of the violation of almost every one of its injunctions."[18] But with the end of antiquity a decided change took place. Resistance against suicide and against abortion became common. The Oath came to be popular. The emerging teachings of Christianity were in agreement with the Pythagorean ethic. The Oath "became the nucleus of all medical ethics" and "was applauded as the embodiment of truth." Thus, suggests Dr. Edelstein, it is "a Pythagorean manifesto and not the expression of an absolute standard of medical conduct."[19]
This, it seems to us, is a satisfactory and acceptable explanation of the Hippocratic Oath's apparent rigidity. It enables us to understand, in historical context, a long-accepted and revered statement of medical ethics.
3. The common law. It is undisputed that at common law, abortion performed before "quickening" the first recognizable movement of the fetus in utero, appearing usually from the 16th to the 18th week of pregnancy[20]was not an indictable offense.[21] The absence *133 of a common-law crime for pre-quickening abortion appears to have developed from a confluence of earlier philosophical, theological, and civil and canon law concepts of when life begins. These disciplines variously approached the question in terms of the point at which the embryo or fetus became "formed" or recognizably human, or in terms of when a "person" came into being, that is, infused with a "soul" or "animated." A loose consensus evolved in early English law that these events occurred at some point between conception and live birth.[22] This was "mediate animation." Although *134 Christian theology and the canon law came to fix the point of animation at 40 days for a male and 80 days for a female, a view that persisted until the 19th century, there was otherwise little agreement about the precise time of formation or animation. There was agreement, however, that prior to this point the fetus was to be regarded as part of the mother, and its destruction, therefore, was not homicide. Due to continued uncertainty about the precise time when animation occurred, to the lack of any empirical basis for the 40-80-day view, and perhaps to Aquinas' definition of movement as one of the two first principles of life, Bracton focused upon quickening as the critical point. The significance of quickening was echoed by later common-law scholars and found its way into the received common law in this country.
Whether abortion of a quick fetus was a felony at common law, or even a lesser crime, is still disputed. Bracton, writing early in the 13th century, thought it homicide.[23] But the later and predominant view, following the great common-law scholars, has been that it was, at most, a lesser offense. In a frequently cited *135 passage, Coke took the position that abortion of a woman "quick with childe" is "a great misprision, and no murder."[24] Blackstone followed, saying that while abortion after quickening had once been considered manslaughter (though not murder), "modern law" took a less severe view.[25] A recent review of the common-law precedents argues, however, that those precedents contradict Coke and that even post-quickening abortion was never established as a common-law crime.[26] This is of some importance because while most American courts ruled, in holding or dictum, that abortion of an unquickened fetus was not criminal under their received common law,[27] others followed Coke in stating that abortion *136 of a quick fetus was a "misprision," a term they translated to mean "misdemeanor."[28] That their reliance on Coke on this aspect of the law was uncritical and, apparently in all the reported cases, dictum (due probably to the paucity of common-law prosecutions for post-quickening abortion), makes it now appear doubtful that abortion was ever firmly established as a common-law crime even with respect to the destruction of a quick fetus.
4. The English statutory law. England's first criminal abortion statute, Lord Ellenborough's Act, 43 Geo. 3, c. 58, came in 1803. It made abortion of a quick fetus, § 1, a capital crime, but in § 2 it provided lesser penalties for the felony of abortion before quickening, and thus preserved the "quickening" distinction. This contrast was continued in the general revision of 1828, 9 Geo. 4, c. 31, § 13. It disappeared, however, together with the death penalty, in 1837, 7 Will. 4 & 1 Vict., c. 85. § 6, and did not reappear in the Offenses Against the Person Act of 1861, 24 & 25 Vict., c. 100, § 59, that formed the core of English anti-abortion law until the liberalizing reforms of 1967. In 1929, the Infant Life (Preservation) Act, 19 & 20 Geo. 5, c. 34, came into being. Its emphasis was upon the destruction of "the life of a child capable of being born alive." It made a willful act performed with the necessary intent a felony. It contained a proviso that one was not to be *137 found guilty of the offense "unless it is proved that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother."
A seemingly notable development in the English law was the case of Rex v. Bourne, [1939] 1 K. B. 687. This case apparently answered in the affirmative the question whether an abortion necessary to preserve the life of the pregnant woman was excepted from the criminal penalties of the 1861 Act. In his instructions to the jury, Judge Macnaghten referred to the 1929 Act, and observed that that Act related to "the case where a child is killed by a wilful act at the time when it is being delivered in the ordinary course of nature." Id., at 691. He concluded that the 1861 Act's use of the word "unlawfully," imported the same meaning expressed by the specific proviso in the 1929 Act, even though there was no mention of preserving the mother's life in the 1861 Act. He then construed the phrase "preserving the life of the mother" broadly, that is, "in a reasonable sense," to include a serious and permanent threat to the mother's health, and instructed the jury to acquit Dr. Bourne if it found he had acted in a good-faith belief that the abortion was necessary for this purpose. Id., at 693-694. The jury did acquit.
Recently, Parliament enacted a new abortion law. This is the Abortion Act of 1967, 15 & 16 Eliz. 2, c. 87. The Act permits a licensed physician to perform an abortion where two other licensed physicians agree (a) "that the continuance of the pregnancy would involve risk to the life of the pregnant woman, or of injury to the physical or mental health of the pregnant woman or any existing children of her family, greater than if the pregnancy were terminated," or (b) "that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as *138 to be seriously handicapped." The Act also provides that, in making this determination, "account may be taken of the pregnant woman's actual or reasonably foreseeable environment." It also permits a physician, without the concurrence of others, to terminate a pregnancy where he is of the good-faith opinion that the abortion "is immediately necessary to save the life or to prevent grave permanent injury to the physical or mental health of the pregnant woman."
5. The American law. In this country, the law in effect in all but a few States until mid-19th century was the pre-existing English common law. Connecticut, the first State to enact abortion legislation, adopted in 1821 that part of Lord Ellenborough's Act that related to a woman "quick with child."[29] The death penalty was not imposed. Abortion before quickening was made a crime in that State only in 1860.[30] In 1828, New York enacted legislation[31] that, in two respects, was to serve as a model for early anti-abortion statutes. First, while barring destruction of an unquickened fetus as well as a quick fetus, it made the former only a misdemeanor, but the latter second-degree manslaughter. Second, it incorporated a concept of therapeutic abortion by providing that an abortion was excused if it "shall have been necessary to preserve the life of such mother, or shall have been advised by two physicians to be necessary for such purpose." By 1840, when Texas had received the common law,[32] only eight American States *139 had statutes dealing with abortion.[33] It was not until after the War Between the States that legislation began generally to replace the common law. Most of these initial statutes dealt severely with abortion after quickening but were lenient with it before quickening. Most punished attempts equally with completed abortions. While many statutes included the exception for an abortion thought by one or more physicians to be necessary to save the mother's life, that provision soon disappeared and the typical law required that the procedure actually be necessary for that purpose.
Gradually, in the middle and late 19th century the quickening distinction disappeared from the statutory law of most States and the degree of the offense and the penalties were increased. By the end of the 1950's, a large majority of the jurisdictions banned abortion, however and whenever performed, unless done to save or preserve the life of the mother.[34] The exceptions, Alabama and the District of Columbia, permitted abortion to preserve the mother's health.[35] Three States permitted abortions that were not "unlawfully" performed or that were not "without lawful justification," leaving interpretation of those standards to the courts.[36] In *140 the past several years, however, a trend toward liberalization of abortion statutes has resulted in adoption, by about one-third of the States, of less stringent laws, most of them patterned after the ALI Model Penal Code, § 230.3,[37] set forth as Appendix B to the opinion in Doe v. Bolton, post, p. 205.
It is thus apparent that at common law, at the time of the adoption of our Constitution, and throughout the major portion of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect. Phrasing it another way, a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today. At least with respect to the early stage of pregnancy, and very possibly without such a limitation, the opportunity *141 to make this choice was present in this country well into the 19th century. Even later, the law continued for some time to treat less punitively an abortion procured in early pregnancy.
6. The position of the American Medical Association. The anti-abortion mood prevalent in this country in the late 19th century was shared by the medical profession. Indeed, the attitude of the profession may have played a significant role in the enactment of stringent criminal abortion legislation during that period.
An AMA Committee on Criminal Abortion was appointed in May 1857. It presented its report, 12 Trans. of the Am. Med. Assn. 73-78 (1859), to the Twelfth Annual Meeting. That report observed that the Committee had been appointed to investigate criminal abortion "with a view to its general suppression." It deplored abortion and its frequency and it listed three causes of "this general demoralization":
"The first of these causes is a wide-spread popular ignorance of the true character of the crime a belief, even among mothers themselves, that the foetus is not alive till after the period of quickening.
"The second of the agents alluded to is the fact that the profession themselves are frequently supposed careless of foetal life . . . .
"The third reason of the frightful extent of this crime is found in the grave defects of our laws, both common and statute, as regards the independent and actual existence of the child before birth, as a living being. These errors, which are sufficient in most instances to prevent conviction, are based, and only based, upon mistaken and exploded medical dogmas. With strange inconsistency, the law fully acknowledges the foetus in utero and its inherent rights, for civil purposes; while personally and as criminally affected, it fails to recognize it, *142 and to its life as yet denies all protection." Id., at 75-76.
The Committee then offered, and the Association adopted, resolutions protesting "against such unwarrantable destruction of human life," calling upon state legislatures to revise their abortion laws, and requesting the cooperation of state medical societies "in pressing the subject." Id., at 28, 78.
In 1871 a long and vivid report was submitted by the Committee on Criminal Abortion. It ended with the observation, "We had to deal with human life. In a matter of less importance we could entertain no compromise. An honest judge on the bench would call things by their proper names. We could do no less." 22 Trans. of the Am. Med. Assn. 258 (1871). It proffered resolutions, adopted by the Association, id., at 38-39, recommending, among other things, that it "be unlawful and unprofessional for any physician to induce abortion or premature labor, without the concurrent opinion of at least one respectable consulting physician, and then always with a view to the safety of the child if that be possible," and calling "the attention of the clergy of all denominations to the perverted views of morality entertained by a large class of femalesaye, and men also, on this important question."
Except for periodic condemnation of the criminal abortionist, no further formal AMA action took place until 1967. In that year, the Committee on Human Reproduction urged the adoption of a stated policy of opposition to induced abortion, except when there is "documented medical evidence" of a threat to the health or life of the mother, or that the child "may be born with incapacitating physical deformity or mental deficiency," or that a pregnancy "resulting from legally established statutory or forcible rape or incest may constitute a threat to the mental or physical health of the *143 patient," two other physicians "chosen because of their recognized professional competence have examined the patient and have concurred in writing," and the procedure "is performed in a hospital accredited by the Joint Commission on Accreditation of Hospitals." The providing of medical information by physicians to state legislatures in their consideration of legislation regarding therapeutic abortion was "to be considered consistent with the principles of ethics of the American Medical Association." This recommendation was adopted by the House of Delegates. Proceedings of the AMA House of Delegates 40-51 (June 1967).
In 1970, after the introduction of a variety of proposed resolutions, and of a report from its Board of Trustees, a reference committee noted "polarization of the medical profession on this controversial issue"; division among those who had testified; a difference of opinion among AMA councils and committees; "the remarkable shift in testimony" in six months, felt to be influenced "by the rapid changes in state laws and by the judicial decisions which tend to make abortion more freely available;" and a feeling "that this trend will continue." On June 25, 1970, the House of Delegates adopted preambles and most of the resolutions proposed by the reference committee. The preambles emphasized "the best interests of the patient," "sound clinical judgment," and "informed patient consent," in contrast to "mere acquiescence to the patient's demand." The resolutions asserted that abortion is a medical procedure that should be performed by a licensed physician in an accredited hospital only after consultation with two other physicians and in conformity with state law, and that no party to the procedure should be required to violate personally held moral principles.[38] Proceedings *144 of the AMA House of Delegates 220 (June 1970). The AMA Judicial Council rendered a complementary opinion.[39]
7. The position of the American Public Health Association. In October 1970, the Executive Board of the APHA adopted Standards for Abortion Services. These were five in number:
"a. Rapid and simple abortion referral must be readily available through state and local public *145 health departments, medical societies, or other nonprofit organizations.
"b. An important function of counselling should be to simplify and expedite the provision of abortion services; it should not delay the obtaining of these services.
"c. Psychiatric consultation should not be mandatory. As in the case of other specialized medical services, psychiatric consultation should be sought for definite indications and not on a routine basis.
"d. A wide range of individuals from appropriately trained, sympathetic volunteers to highly skilled physicians may qualify as abortion counselors.
"e. Contraception and/or sterilization should be discussed with each abortion patient." Recommended Standards for Abortion Services, 61 Am. J. Pub. Health 396 (1971).
Among factors pertinent to life and health risks associated with abortion were three that "are recognized as important":
"a. the skill of the physician,
"b. the environment in which the abortion is performed, and above all
"c. the duration of pregnancy, as determined by uterine size and confirmed by menstrual history." Id., at 397.
It was said that "a well-equipped hospital" offers more protection "to cope with unforeseen difficulties than an office or clinic without such resources. . . . The factor of gestational age is of overriding importance." Thus, it was recommended that abortions in the second trimester and early abortions in the presence of existing medical complications be performed in hospitals as inpatient procedures. For pregnancies in the first trimester, *146 abortion in the hospital with or without overnight stay "is probably the safest practice." An abortion in an extramural facility, however, is an acceptable alternative "provided arrangements exist in advance to admit patients promptly if unforeseen complications develop." Standards for an abortion facility were listed. It was said that at present abortions should be performed by physicians or osteopaths who are licensed to practice and who have "adequate training." Id., at 398.
8. The position of the American Bar Association. At its meeting in February 1972 the ABA House of Delegates approved, with 17 opposing votes, the Uniform Abortion Act that had been drafted and approved the preceding August by the Conference of Commissioners on Uniform State Laws. 58 A. B. A. J. 380 (1972). We set forth the Act in full in the margin.[40] The *147 Conference has appended an enlightening Prefatory Note.[41]
VII
Three reasons have been advanced to explain historically the enactment of criminal abortion laws in the 19th century and to justify their continued existence.
*148 It has been argued occasionally that these laws were the product of a Victorian social concern to discourage illicit sexual conduct. Texas, however, does not advance this justification in the present case, and it appears that no court or commentator has taken the argument seriously.[42] The appellants and amici contend, moreover, that this is not a proper state purpose at all and suggest that, if it were, the Texas statutes are overbroad in protecting it since the law fails to distinguish between married and unwed mothers.
A second reason is concerned with abortion as a medical procedure. When most criminal abortion laws were first enacted, the procedure was a hazardous one for the woman.[43] This was particularly true prior to the *149 development of antisepsis. Antiseptic techniques, of course, were based on discoveries by Lister, Pasteur, and others first announced in 1867, but were not generally accepted and employed until about the turn of the century. Abortion mortality was high. Even after 1900, and perhaps until as late as the development of antibiotics in the 1940's, standard modern techniques such as dilation and curettage were not nearly so safe as they are today. Thus, it has been argued that a State's real concern in enacting a criminal abortion law was to protect the pregnant woman, that is, to restrain her from submitting to a procedure that placed her life in serious jeopardy.
Modern medical techniques have altered this situation. Appellants and various amici refer to medical data indicating that abortion in early pregnancy, that is, prior to the end of the first trimester, although not without its risk, is now relatively safe. Mortality rates for women undergoing early abortions, where the procedure is legal, appear to be as low as or lower than the rates for normal childbirth.[44] Consequently, any interest of the State in protecting the woman from an inherently hazardous procedure, except when it would be equally dangerous for her to forgo it, has largely disappeared. Of course, important state interests in the areas of health and medical standards do remain. *150 The State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient. This interest obviously extends at least to the performing physician and his staff, to the facilities involved, to the availability of after-care, and to adequate provision for any complication or emergency that might arise. The prevalence of high mortality rates at illegal "abortion mills" strengthens, rather than weakens, the State's interest in regulating the conditions under which abortions are performed. Moreover, the risk to the woman increases as her pregnancy continues. Thus, the State retains a definite interest in protecting the woman's own health and safety when an abortion is proposed at a late stage of pregnancy.
The third reason is the State's interestsome phrase it in terms of dutyin protecting prenatal life. Some of the argument for this justification rests on the theory that a new human life is present from the moment of conception.[45] The State's interest and general obligation to protect life then extends, it is argued, to prenatal life. Only when the life of the pregnant mother herself is at stake, balanced against the life she carries within her, should the interest of the embryo or fetus not prevail. Logically, of course, a legitimate state interest in this area need not stand or fall on acceptance of the belief that life begins at conception or at some other point prior to live birth. In assessing the State's interest, recognition may be given to the less rigid claim that as long as at least potential life is involved, the State may assert interests beyond the protection of the pregnant woman alone.
*151 Parties challenging state abortion laws have sharply disputed in some courts the contention that a purpose of these laws, when enacted, was to protect prenatal life.[46] Pointing to the absence of legislative history to support the contention, they claim that most state laws were designed solely to protect the woman. Because medical advances have lessened this concern, at least with respect to abortion in early pregnancy, they argue that with respect to such abortions the laws can no longer be justified by any state interest. There is some scholarly support for this view of original purpose.[47] The few state courts called upon to interpret their laws in the late 19th and early 20th centuries did focus on the State's interest in protecting the woman's health rather than in preserving the embryo and fetus.[48] Proponents of this view point out that in many States, including Texas,[49] by statute or judicial interpretation, the pregnant woman herself could not be prosecuted for self-abortion or for cooperating in an abortion performed upon her by another.[50] They claim that adoption of the "quickening" distinction through received common *152 law and state statutes tacitly recognizes the greater health hazards inherent in late abortion and impliedly repudiates the theory that life begins at conception.
It is with these interests, and the weight to be attached to them, that this case is concerned.
VIII
The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment, Stanley v. Georgia, 394 U.S. 557, 564 (1969); in the Fourth and Fifth Amendments, Terry v. Ohio, 392 U.S. 1, 8-9 (1968), Katz v. United States, 389 U.S. 347, 350 (1967), Boyd v. United States, 116 U.S. 616 (1886), see Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting); in the penumbras of the Bill of Rights, Griswold v. Connecticut, 381 U. S., at 484-485; in the Ninth Amendment, id., at 486 (Goldberg, J., concurring); or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment, see Meyer v. Nebraska, 262 U.S. 390, 399 (1923). These decisions make it clear that only personal rights that can be deemed "fundamental" or "implicit in the concept of ordered liberty," Palko v. Connecticut, 302 U.S. 319, 325 (1937), are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia, 388 U.S. 1, 12 (1967); procreation, Skinner v. Oklahoma, 316 U.S. 535, 541-542 (1942); contraception, Eisenstadt v. Baird, 405 U. S., at 453-454; id., at 460, 463-465 *153 (WHITE, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166 (1944); and child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925), Meyer v. Nebraska, supra.
This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.
On the basis of elements such as these, appellant and some amici argue that the woman's right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree. Appellant's arguments that Texas either has no valid interest at all in regulating the abortion decision, or no interest strong enough to support any limitation upon the woman's sole determination, are unpersuasive. The *154 Court's decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. The privacy right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one's body as one pleases bears a close relationship to the right of privacy previously articulated in the Court's decisions. The Court has refused to recognize an unlimited right of this kind in the past. Jacobson v. Massachusetts, 197 U.S. 11 (1905) (vaccination); Buck v. Bell, 274 U.S. 200 (1927) (sterilization).
We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.
We note that those federal and state courts that have recently considered abortion law challenges have reached the same conclusion. A majority, in addition to the District Court in the present case, have held state laws unconstitutional, at least in part, because of vagueness or because of overbreadth and abridgment of rights. Abele v. Markle, 342 F. Supp. 800 (Conn. 1972), appeal docketed, No. 72-56; Abele v. Markle, 351 F. Supp. 224 (Conn. 1972), appeal docketed, No. 72-730; Doe v. Bolton, 319 F. Supp. 1048 (ND Ga. 1970), appeal decided today, post, p. 179; Doe v. Scott, 321 F. Supp. 1385 (ND Ill. 1971), appeal docketed, No. 70-105; Poe v. Menghini, 339 F. Supp. 986 (Kan. 1972); YWCA v. Kugler, 342 F. Supp. 1048 (NJ 1972); Babbitz v. McCann, *155 310 F. Supp. 293 (ED Wis. 1970), appeal dismissed, 400 U.S. 1 (1970); People v. Belous, 71 Cal. 2d 954, 458 P.2d 194 (1969), cert. denied, 397 U.S. 915 (1970); State v. Barquet, 262 So. 2d 431 (Fla. 1972).
Others have sustained state statutes. Crossen v. Attorney General, 344 F. Supp. 587 (ED Ky. 1972), appeal docketed, No. 72-256; Rosen v. Louisiana State Board of Medical Examiners, 318 F. Supp. 1217 (ED La. 1970), appeal docketed, No. 70-42; Corkey v. Edwards, 322 F. Supp. 1248 (WDNC 1971), appeal docketed, No. 71-92; Steinberg v. Brown, 321 F. Supp. 741 (ND Ohio 1970); Doe v. Rampton (Utah 1971), appeal docketed, No. 71-5666; Cheaney v. State, ___ Ind. ___, 285 N.E.2d 265 (1972); Spears v. State, 257 So. 2d 876 (Miss. 1972); State v. Munson, 86 S. D. 663, 201 N.W.2d 123 (1972), appeal docketed, No. 72-631.
Although the results are divided, most of these courts have agreed that the right of privacy, however based, is broad enough to cover the abortion decision; that the right, nonetheless, is not absolute and is subject to some limitations; and that at some point the state interests as to protection of health, medical standards, and prenatal life, become dominant. We agree with this approach.
Where certain "fundamental rights" are involved, the Court has held that regulation limiting these rights may be justified only by a "compelling state interest," Kramer v. Union Free School District, 395 U.S. 621, 627 (1969); Shapiro v. Thompson, 394 U.S. 618, 634 (1969), Sherbert v. Verner, 374 U.S. 398, 406 (1963), and that legislative enactments must be narrowly drawn to express only the legitimate state interests at stake. Griswold v. Connecticut, 381 U. S., at 485; Aptheker v. Secretary of State, 378 U.S. 500, 508 (1964); Cantwell v. Connecticut, 310 U.S. 296, 307-308 (1940); see *156 Eisenstadt v. Baird, 405 U. S., at 460, 463-464 (WHITE, J., concurring in result).
In the recent abortion cases, cited above, courts have recognized these principles. Those striking down state laws have generally scrutinized the State's interests in protecting health and potential life, and have concluded that neither interest justified broad limitations on the reasons for which a physician and his pregnant patient might decide that she should have an abortion in the early stages of pregnancy. Courts sustaining state laws have held that the State's determinations to protect health or prenatal life are dominant and constitutionally justifiable.
IX
The District Court held that the appellee failed to meet his burden of demonstrating that the Texas statute's infringement upon Roe's rights was necessary to support a compelling state interest, and that, although the appellee presented "several compelling justifications for state presence in the area of abortions," the statutes outstripped these justifications and swept "far beyond any areas of compelling state interest." 314 F. Supp., at 1222-1223. Appellant and appellee both contest that holding. Appellant, as has been indicated, claims an absolute right that bars any state imposition of criminal penalties in the area. Appellee argues that the State's determination to recognize and protect prenatal life from and after conception constitutes a compelling state interest. As noted above, we do not agree fully with either formulation.
A. The appellee and certain amici argue that the fetus is a "person" within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development. If this suggestion of personhood is established, the appellant's case, of course, collapses, *157 for the fetus' right to life would then be guaranteed specifically by the Amendment. The appellant conceded as much on reargument.[51] On the other hand, the appellee conceded on reargument[52] that no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment.
The Constitution does not define "person" in so many words. Section 1 of the Fourteenth Amendment contains three references to "person." The first, in defining "citizens," speaks of "persons born or naturalized in the United States." The word also appears both in the Due Process Clause and in the Equal Protection Clause. "Person" is used in other places in the Constitution: in the listing of qualifications for Representatives and Senators, Art. I, § 2, cl. 2, and § 3, cl. 3; in the Apportionment Clause, Art. I, § 2, cl. 3;[53] in the Migration and Importation provision, Art. I, § 9, cl. 1; in the Emolument Clause, Art. I, § 9, cl. 8; in the Electors provisions, Art. II, § 1, cl. 2, and the superseded cl. 3; in the provision outlining qualifications for the office of President, Art. II, § 1, cl. 5; in the Extradition provisions, Art. IV, § 2, cl. 2, and the superseded Fugitive Slave Clause 3; and in the Fifth, Twelfth, and Twenty-second Amendments, as well as in §§ 2 and 3 of the Fourteenth Amendment. But in nearly all these instances, the use of the word is such that it has application only postnatally. None indicates, with any assurance, that it has any possible pre-natal application.[54]
*158 All this, together with our observation, supra, that throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they are today, persuades us that the word "person," as used in the Fourteenth Amendment, does not include the unborn.[55] This is in accord with the results reached in those few cases where the issue has been squarely presented. McGarvey v. Magee-Womens Hospital, 340 F. Supp. 751 (WD Pa. 1972); Byrn v. New York City Health & Hospitals Corp., 31 N.Y. 2d 194, 286 N.E.2d 887 (1972), appeal docketed, No. 72-434; Abele v. Markle, 351 F. Supp. 224 (Conn. 1972), appeal docketed, No. 72-730. Cf. Cheaney v. State, ___ Ind., at ___, 285 N. E. 2d, at 270; Montana v. Rogers, 278 F.2d 68, 72 (CA7 1960), aff'd sub nom. Montana v. Kennedy, 366 U.S. 308 (1961); Keeler v. Superior Court, 2 Cal. 3d 619, 470 P.2d 617 (1970); State v. Dickinson, 28 *159 Ohio St. 2d 65, 275 N.E.2d 599 (1971). Indeed, our decision in United States v. Vuitch, 402 U.S. 62 (1971), inferentially is to the same effect, for we there would not have indulged in statutory interpretation favorable to abortion in specified circumstances if the necessary consequence was the termination of life entitled to Fourteenth Amendment protection.
This conclusion, however, does not of itself fully answer the contentions raised by Texas, and we pass on to other considerations.
B. The pregnant woman cannot be isolated in her privacy. She carries an embryo and, later, a fetus, if one accepts the medical definitions of the developing young in the human uterus. See Dorland's Illustrated Medical Dictionary 478-479, 547 (24th ed. 1965). The situation therefore is inherently different from marital intimacy, or bedroom possession of obscene material, or marriage, or procreation, or education, with which Eisenstadt and Griswold, Stanley, Loving, Skinner, and Pierce and Meyer were respectively concerned. As we have intimated above, it is reasonable and appropriate for a State to decide that at some point in time another interest, that of health of the mother or that of potential human life, becomes significantly involved. The woman's privacy is no longer sole and any right of privacy she possesses must be measured accordingly.
Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception. We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer.
*160 It should be sufficient to note briefly the wide divergence of thinking on this most sensitive and difficult question. There has always been strong support for the view that life does not begin until live birth. This was the belief of the Stoics.[56] It appears to be the predominant, though not the unanimous, attitude of the Jewish faith.[57] It may be taken to represent also the position of a large segment of the Protestant community, insofar as that can be ascertained; organized groups that have taken a formal position on the abortion issue have generally regarded abortion as a matter for the conscience of the individual and her family.[58] As we have noted, the common law found greater significance in quickening. Physicians and their scientific colleagues have regarded that event with less interest and have tended to focus either upon conception, upon live birth, or upon the interim point at which the fetus becomes "viable," that is, potentially able to live outside the mother's womb, albeit with artificial aid.[59] Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks.[60] The Aristotelian theory of "mediate animation," that held sway throughout the Middle Ages and the Renaissance in Europe, continued to be official Roman Catholic dogma until the 19th century, despite opposition to this "ensoulment" theory from those in the Church who would recognize the existence of life from *161 the moment of conception.[61] The latter is now, of course, the official belief of the Catholic Church. As one brief amicus discloses, this is a view strongly held by many non-Catholics as well, and by many physicians. Substantial problems for precise definition of this view are posed, however, by new embryological data that purport to indicate that conception is a "process" over time, rather than an event, and by new medical techniques such as menstrual extraction, the "morning-after" pill, implantation of embryos, artificial insemination, and even artificial wombs.[62]
In areas other than criminal abortion, the law has been reluctant to endorse any theory that life, as we recognize it, begins before live birth or to accord legal rights to the unborn except in narrowly defined situations and except when the rights are contingent upon live birth. For example, the traditional rule of tort law denied recovery for prenatal injuries even though the child was born alive.[63] That rule has been changed in almost every jurisdiction. In most States, recovery is said to be permitted only if the fetus was viable, or at least quick, when the injuries were sustained, though few *162 courts have squarely so held.[64] In a recent development, generally opposed by the commentators, some States permit the parents of a stillborn child to maintain an action for wrongful death because of prenatal injuries.[65] Such an action, however, would appear to be one to vindicate the parents' interest and is thus consistent with the view that the fetus, at most, represents only the potentiality of life. Similarly, unborn children have been recognized as acquiring rights or interests by way of inheritance or other devolution of property, and have been represented by guardians ad litem.[66] Perfection of the interests involved, again, has generally been contingent upon live birth. In short, the unborn have never been recognized in the law as persons in the whole sense.
X
In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake. We repeat, however, that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman, whether she be a resident of the State or a nonresident who seeks medical consultation and treatment there, and that it has still another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman approaches *163 term and, at a point during pregnancy, each becomes "compelling."
With respect to the State's important and legitimate interest in the health of the mother, the "compelling" point, in the light of present medical knowledge, is at approximately the end of the first trimester. This is so because of the now-established medical fact, referred to above at 149, that until the end of the first trimester mortality in abortion may be less than mortality in normal childbirth. It follows that, from and after this point, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health. Examples of permissible state regulation in this area are requirements as to the qualifications of the person who is to perform the abortion; as to the licensure of that person; as to the facility in which the procedure is to be performed, that is, whether it must be a hospital or may be a clinic or some other place of less-than-hospital status; as to the licensing of the facility; and the like.
This means, on the other hand, that, for the period of pregnancy prior to this "compelling" point, the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient's pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State.
With respect to the State's important and legitimate interest in potential life, the "compelling" point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion *164 during that period, except when it is necessary to preserve the life or health of the mother.
Measured against these standards, Art. 1196 of the Texas Penal Code, in restricting legal abortions to those "procured or attempted by medical advice for the purpose of saving the life of the mother," sweeps too broadly. The statute makes no distinction between abortions performed early in pregnancy and those performed later, and it limits to a single reason, "saving" the mother's life, the legal justification for the procedure. The statute, therefore, cannot survive the constitutional attack made upon it here.
This conclusion makes it unnecessary for us to consider the additional challenge to the Texas statute asserted on grounds of vagueness. See United States v. Vuitch, 402 U. S., at 67-72.
XI
To summarize and to repeat:
1. A state criminal abortion statute of the current Texas type, that excepts from criminality only a life-saving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment.
(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician.
(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.
(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life *165 may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.
2. The State may define the term "physician," as it has been employed in the preceding paragraphs of this Part XI of this opinion, to mean only a physician currently licensed by the State, and may proscribe any abortion by a person who is not a physician as so defined.
In Doe v. Bolton, post, p. 179, procedural requirements contained in one of the modern abortion statutes are considered. That opinion and this one, of course, are to be read together.[67]
This holding, we feel, is consistent with the relative weights of the respective interests involved, with the lessons and examples of medical and legal history, with the lenity of the common law, and with the demands of the profound problems of the present day. The decision leaves the State free to place increasing restrictions on abortion as the period of pregnancy lengthens, so long as those restrictions are tailored to the recognized state interests. The decision vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important *166 state interests provide compelling justifications for intervention. Up to those points, the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician. If an individual practitioner abuses the privilege of exercising proper medical judgment, the usual remedies, judicial and intra-professional, are available.
XII
Our conclusion that Art. 1196 is unconstitutional means, of course, that the Texas abortion statutes, as a unit, must fall. The exception of Art. 1196 cannot be struck down separately, for then the State would be left with a statute proscribing all abortion procedures no matter how medically urgent the case.
Although the District Court granted appellant Roe declaratory relief, it stopped short of issuing an injunction against enforcement of the Texas statutes. The Court has recognized that different considerations enter into a federal court's decision as to declaratory relief, on the one hand, and injunctive relief, on the other. Zwickler v. Koota, 389 U.S. 241, 252-255 (1967); Dombrowski v. Pfister, 380 U.S. 479 (1965). We are not dealing with a statute that, on its face, appears to abridge free expression, an area of particular concern under Dombrowski and refined in Younger v. Harris, 401 U. S., at 50.
We find it unnecessary to decide whether the District Court erred in withholding injunctive relief, for we assume the Texas prosecutorial authorities will give full credence to this decision that the present criminal abortion statutes of that State are unconstitutional.
The judgment of the District Court as to intervenor Hallford is reversed, and Dr. Hallford's complaint in intervention is dismissed. In all other respects, the judgment *167 of the District Court is affirmed. Costs are allowed to the appellee.
It is so ordered.
[For concurring opinion of MR. CHIEF JUSTICE BURGER, see post, p. 207.]
[For concurring opinion of MR. JUSTICE DOUGLAS, see post, p. 209.]
[For dissenting opinion of MR. JUSTICE WHITE, see post, p. 221.]
MR. | This Texas federal appeal and its Georgia companion, post, p. 179, present constitutional challenges to state criminal abortion legislation. The Texas statutes under attack here are typical of those that have been in effect in many States for approximately a century. The Georgia statutes, in contrast, have a modern cast and are a legislative product that, to an extent at least, obviously reflects the influences of recent attitudinal change, of advancing medical knowledge and techniques, and of new thinking about an old issue. We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One's philosophy, one's experiences, one's exposure to the raw edges of human existence, one's religious training, one's attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one's thinking and conclusions about abortion. In addition, population growth, pollution, poverty, and racial overtones tend to complicate and not to simplify the problem. Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and of predilection. We seek earnestly to do this, and, because we do, we *117 have inquired into, and in this opinion place some emphasis upon, medical and medical-legal history and what that history reveals about man's attitudes toward the abortion procedure over the centuries. We bear in mind, too, Mr. Justice Holmes' admonition in his nowvindicated dissent in : "[The Constitution] is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States." I The Texas statutes that concern us here are Arts. 1191-1194 and 1196 of the State's Penal Code.[1] These make it a crime to "procure an abortion," as therein *118 defined, or to attempt one, except with respect to "an abortion procured or attempted by medical advice for the purpose of saving the life of the mother." Similar statutes are in existence in a majority of the States.[2] *119 Texas first enacted a criminal abortion statute in 1854. Texas Laws 1854, c. 49, 1, set forth in 3 H. Gammel, Laws of Texas 1502 (1898). This was soon modified into language that has remained substantially unchanged to the present time. See Texas Penal Code of 1857, c. 7, Arts. 531-536; G. Paschal, Laws of Texas, Arts. 2192-2197 (1866); Texas Rev. Stat., c. 8, Arts. 536-541 (1879); Texas Rev. Crim. Stat., Arts. 1071-10 The final article in each of these compilations provided the same exception, as does the present Article 1196, for an abortion by "medical advice for the purpose of saving the life of the mother."[3] *0 II Jane Roe,[4] a single woman who was residing in Dallas County, Texas, instituted this federal action in March against the District Attorney of the county. She sought a declaratory judgment that the Texas criminal abortion statutes were unconstitutional on their face, and an injunction restraining the defendant from enforcing the statutes. Roe alleged that she was unmarried and pregnant; that she wished to terminate her pregnancy by an abortion "performed by a competent, licensed physician, under safe, clinical conditions"; that she was unable to get a "legal" abortion in Texas because her life did not appear to be threatened by the continuation of her pregnancy; and that she could not afford to travel to another jurisdiction in order to secure a legal abortion under safe conditions. She claimed that the Texas statutes were unconstitutionally vague and that they abridged her right of personal privacy, protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. By an amendment to her complaint Roe purported to sue "on behalf of herself and all other women" similarly situated. James Hubert Hallford, a licensed physician, sought and was granted leave to intervene in Roe's action. In his complaint he alleged that he had been arrested previously for violations of the Texas abortion statutes and *1 that two such prosecutions were pending against him. He described conditions of patients who came to him seeking abortions, and he claimed that for many cases he, as a physician, was unable to determine whether they fell within or outside the exception recognized by Article 1196. He alleged that, as a consequence, the statutes were vague and uncertain, in violation of the Fourteenth Amendment, and that they violated his own and his patients' rights to privacy in the doctor-patient relationship and his own right to practice medicine, rights he claimed were guaranteed by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. John and Mary Doe,[5] a married couple, filed a companion complaint to that of Roe. They also named the District Attorney as defendant, claimed like constitutional deprivations, and sought declaratory and injunctive relief. The Does alleged that they were a childless couple; that Mrs. Doe was suffering from a "neural-chemical" disorder; that her physician had "advised her to avoid pregnancy until such time as her condition has materially improved" (although a pregnancy at the present time would not present "a serious risk" to her life); that, pursuant to medical advice, she had discontinued use of birth control pills; and that if she should become pregnant, she would want to terminate the pregnancy by an abortion performed by a competent, licensed physician under safe, clinical conditions. By an amendment to their complaint, the Does purported to sue "on behalf of themselves and all couples similarly situated." The two actions were consolidated and heard together by a duly convened three-judge district court. The suits thus presented the situations of the pregnant single woman, the childless couple, with the wife not pregnant, *2 and the licensed practicing physician, all joining in the attack on the Texas criminal abortion statutes. Upon the filing of affidavits, motions were made for dismissal and for summary judgment. The court held that Roe and members of her class, and Dr. Hallford, had standing to sue and presented justiciable controversies, but that the Does had failed to allege facts sufficient to state a present controversy and did not have standing. It concluded that, with respect to the requests for a declaratory judgment, abstention was not warranted. On the merits, the District Court held that the "fundamental right of single women and married persons to choose whether to have children is protected by the Ninth Amendment, through the Fourteenth Amendment," and that the Texas criminal abortion statutes were void on their face because they were both unconstitutionally vague and constituted an overbroad infringement of the plaintiffs' Ninth Amendment rights. The court then held that abstention was warranted with respect to the requests for an injunction. It therefore dismissed the Does' complaint, declared the abortion statutes void, and dismissed the application for injunctive relief. The plaintiffs Roe and Doe and the intervenor Hallford, pursuant to 28 U.S. C. 53, have appealed to this Court from that part of the District Court's judgment denying the injunction. The defendant District Attorney has purported to cross-appeal, pursuant to the same statute, from the court's grant of declaratory relief to Roe and Hallford. Both sides also have taken protective appeals to the United States Court of Appeals for the Fifth Circuit. That court ordered the appeals held in abeyance pending decision here. We postponed decision on jurisdiction to the hearing on the merits. *3 III It might have been preferable if the defendant, pursuant to our Rule 20, had presented to us a petition for certiorari before judgment in the Court of Appeals with respect to the granting of the plaintiffs' prayer for declaratory relief. Our decisions in and are to the effect that 53 does not authorize an appeal to this Court from the grant or denial of declaratory relief alone. We conclude, nevertheless, that those decisions do not foreclose our review of both the injunctive and the declaratory aspects of a case of this kind when it is properly here, as this one is, on appeal under 53 from specific denial of injunctive relief, and the arguments as to both aspects are necessarily identical. See ; Florida Lime It would be destructive of time and energy for all concerned were we to rule otherwise. Cf. post, p. 179. IV We are next confronted with issues of justiciability, standing, and abstention. Have Roe and the Does established that "personal stake in the outcome of the controversy," that insures that "the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution," and Sierra ? And what effect did the pendency of criminal abortion charges against Dr. Hallford in state court have upon the propriety of the federal court's granting relief to him as a plaintiff-intervenor? *4 A. Jane Roe. Despite the use of the pseudonym, no suggestion is made that Roe is a fictitious person. For purposes of her case, we accept as true, and as established, her existence; her pregnant state, as of the inception of her suit in March and as late as May 21 of that year when she filed an alias affidavit with the District Court; and her inability to obtain a legal abortion in Texas. Viewing Roe's case as of the time of its filing and thereafter until as late as May, there can be little dispute that it then presented a case or controversy and that, wholly apart from the class aspects, she, as a pregnant single woman thwarted by the Texas criminal abortion laws, had standing to challenge those statutes. ; ; See Indeed, we do not read the appellee's brief as really asserting anything to the contrary. The "logical nexus between the status asserted and the claim sought to be adjudicated," and the necessary degree of contentiousness, are both present. The appellee notes, however, that the record does not disclose that Roe was pregnant at the time of the District Court hearing on May 22,[6] or on the following June 17 when the court's opinion and judgment were filed. And he suggests that Roe's case must now be moot because she and all other members of her class are no longer subject to any pregnancy. *5 The usual rule in federal cases is that an actual controversy must exist at stages of appellate or certiorari review, and not simply at the date the action is initiated. United ; But when, as here, pregnancy is a significant fact in the litigation, the normal 266-day human gestation period is so short that the pregnancy will come to term before the usual appellate process is complete. If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied. Our law should not be that rigid. Pregnancy often comes more than once to the same woman, and in the general population, if man is to survive, it will always be with us. Pregnancy provides a classic justification for a conclusion of nonmootness. It truly could be "capable of repetition, yet evading review." Southern Pacific Terminal See ; ; United We, therefore, agree with the District Court that Jane Roe had standing to undertake this litigation, that she presented a justiciable controversy, and that the termination of her pregnancy has not rendered her case moot. B. Dr. Hallford. The doctor's position is different. He entered Roe's litigation as a plaintiff-intervenor, alleging in his complaint that he: "[I]n the past has been arrested for violating the Texas Abortion Laws and at the present time stands charged by indictment with violating said laws in the Criminal District Court of Dallas County, Texas to-wit: (1) The State of Texas vs. *6 James H. Hallford, No. C-69-5307-IH, and (2) The State of Texas vs. James H. Hallford, No. C-69-2524-H. In both cases the defendant is charged with abortion" In his application for leave to intervene, the doctor made like representations as to the abortion charges pending in the state court. These representations were also repeated in the affidavit he executed and filed in support of his motion for summary judgment. Dr. Hallford is, therefore, in the position of seeking, in a federal court, declaratory and injunctive relief with respect to the same statutes under which he stands charged in criminal prosecutions simultaneously pending in state court. Although he stated that he has been arrested in the past for violating the State's abortion laws, he makes no allegation of any substantial and immediate threat to any federally protected right that cannot be asserted in his defense against the state prosecutions. Neither is there any allegation of harassment or bad-faith prosecution. In order to escape the rule articulated in the cases cited in the next paragraph of this opinion that, absent harassment and bad faith, a defendant in a pending state criminal case cannot affirmatively challenge in federal court the statutes under which the State is prosecuting him, Dr. Hallford seeks to distinguish his status as a present state defendant from his status as a "potential future defendant" and to assert only the latter for standing purposes here. We see no merit in that distinction. Our decision in compels the conclusion that the District Court erred when it granted declaratory relief to Dr. Hallford instead of refraining from so doing. The court, of course, was correct in refusing to grant injunctive relief to the doctor. The reasons supportive of that action, however, are those expressed in and in ; ; ; and See also We note, in passing, that Younger and its companion cases were decided after the three-judge District Court decision in this case. Dr. Hallford's complaint in intervention, therefore, is to be dismissed.[7] He is remitted to his defenses in the state criminal proceedings against him. We reverse the judgment of the District Court insofar as it granted Dr. Hallford relief and failed to dismiss his complaint in intervention. C. The Does. In view of our ruling as to Roe's standing in her case, the issue of the Does' standing in their case has little significance. The claims they assert are essentially the same as those of Roe, and they attack the same statutes. Nevertheless, we briefly note the Does' posture. Their pleadings present them as a childless married couple, the woman not being pregnant, who have no desire to have children at this time because of their having received medical advice that Mrs. Doe should avoid pregnancy, and for "other highly personal reasons." But they "fear they may face the prospect of becoming *8 parents." And if pregnancy ensues, they "would want to terminate" it by an abortion. They assert an inability to obtain an abortion legally in Texas and, consequently, the prospect of obtaining an illegal abortion there or of going outside Texas to some place where the procedure could be obtained legally and competently. We thus have as plaintiffs a married couple who have, as their asserted immediate and present injury, only an alleged "detrimental effect upon [their] marital happiness" because they are forced to "the choice of refraining from normal sexual relations or of endangering Mary Doe's health through a possible pregnancy." Their claim is that sometime in the future Mrs. Doe might become pregnant because of possible failure of contraceptive measures, and at that time in the future she might want an abortion that might then be illegal under the Texas statutes. This very phrasing of the Does' position reveals its speculative character. Their alleged injury rests on possible future contraceptive failure, possible future pregnancy, possible future unpreparedness for parenthood, and possible future impairment of health. Any one or more of these several possibilities may not take place and all may not combine. In the Does' estimation, these possibilities might have some real or imagined impact upon their marital happiness. But we are not prepared to say that the bare allegation of so indirect an injury is sufficient to present an actual case or controversy. Younger v. -42; -110; 452 F. 2d, at 14-; 446 F. 2d, at 839. The Does' claim falls far short of those resolved otherwise in the cases that the Does urge upon us, namely, Investment Co. ; Data Processing ; *9 and See also The Does therefore are not appropriate plaintiffs in this litigation. Their complaint was properly dismissed by the District Court, and we affirm that dismissal. V The principal thrust of appellant's attack on the Texas statutes is that they improperly invade a right, said to be possessed by the pregnant woman, to choose to terminate her pregnancy. Appellant would discover this right in the concept of personal "liberty" embodied in the Fourteenth Amendment's Due Process Clause; or in personal, marital, familial, and sexual privacy said to be protected by the Bill of Rights or its penumbras, see ; ; ; or among those rights reserved to the people by the Ninth Amendment, Before addressing this claim, we feel it desirable briefly to survey, in several aspects, the history of abortion, for such insight as that history may afford us, and then to examine the state purposes and interests behind the criminal abortion laws. VI It perhaps is not generally appreciated that the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage. Those laws, generally proscribing abortion or its attempt at any time during pregnancy except when necessary to preserve the pregnant woman's life, are not of ancient or even of common-law origin. Instead, they derive from statutory changes effected, for the most part, in the latter half of the 19th century. *130 1. Ancient attitudes. These are not capable of precise determination. We are told that at the time of the Persian Empire abortifacients were known and that criminal abortions were severely punished.[8] We are also told, however, that abortion was practiced in Greek times as well as in the Roman Era,[9] and that "it was resorted to without scruple."[10] The Ephesian, Soranos, often described as the greatest of the ancient gynecologists, appears to have been generally opposed to Rome's prevailing free-abortion practices. He found it necessary to think first of the life of the mother, and he resorted to abortion when, upon this standard, he felt the procedure advisable.[11] Greek and Roman law afforded little protection to the unborn. If abortion was prosecuted in some places, it seems to have been based on a concept of a violation of the father's right to his offspring. Ancient religion did not bar abortion.[] 2. The Hippocratic Oath. What then of the famous Oath that has stood so long as the ethical guide of the medical profession and that bears the name of the great Greek (460(?)-377(?) B. C.), who has been described *131 as the Father of Medicine, the "wisest and the greatest practitioner of his art," and the "most important and most complete medical personality of antiquity," who dominated the medical schools of his time, and who typified the sum of the medical knowledge of the past?[13] The Oath varies somewhat according to the particular translation, but in any translation the content is clear: "I will give no deadly medicine to anyone if asked, nor suggest any such counsel; and in like manner I will not give to a woman a pessary to produce abortion,"[14] or "I will neither give a deadly drug to anybody if asked for it, nor will I make a suggestion to this effect. Similarly, I will not give to a woman an abortive remedy."[15] Although the Oath is not mentioned in any of the principal briefs in this case or in post, p. 179, it represents the apex of the development of strict ethical concepts in medicine, and its influence endures to this day. Why did not the authority of Hippocrates dissuade abortion practice in his time and that of Rome? The late Dr. Edelstein provides us with a theory:[16] The Oath was not uncontested even in Hippocrates' day; only the Pythagorean school of philosophers frowned upon the related act of suicide. Most Greek thinkers, on the other hand, commended abortion, at least prior to viability. See Plato, Republic, V, 461; Aristotle, Politics, VII, 1335b 25. For the Pythagoreans, however, it was a matter of dogma. For them the embryo was animate from the moment of conception, and abortion meant destruction of a living being. The abortion clause of the Oath, therefore, "echoes Pythagorean doctrines," *132 and "[i]n no other stratum of Greek opinion were such views held or proposed in the same spirit of uncompromising austerity."[17] Dr. Edelstein then concludes that the Oath originated in a group representing only a small segment of Greek opinion and that it certainly was not accepted by all ancient physicians. He points out that medical writings down to Galen (A. D. 130-200) "give evidence of the violation of almost every one of its injunctions."[18] But with the end of antiquity a decided change took place. Resistance against suicide and against abortion became common. The Oath came to be popular. The emerging teachings of Christianity were in agreement with the Pythagorean ethic. The Oath "became the nucleus of all medical ethics" and "was applauded as the embodiment of truth." Thus, suggests Dr. Edelstein, it is "a Pythagorean manifesto and not the expression of an absolute standard of medical conduct."[19] This, it seems to us, is a satisfactory and acceptable explanation of the Hippocratic Oath's apparent rigidity. It enables us to understand, in historical context, a long-accepted and revered statement of medical ethics. 3. The common law. It is undisputed that at common law, abortion performed before "quickening" the first recognizable movement of the fetus in utero, appearing usually from the 16th to the 18th week of pregnancy[20]was not an indictable offense.[21] The absence *133 of a common-law crime for pre-quickening abortion appears to have developed from a confluence of earlier philosophical, theological, and civil and canon law concepts of when life begins. These disciplines variously approached the question in terms of the point at which the embryo or fetus became "formed" or recognizably human, or in terms of when a "person" came into being, that is, infused with a "soul" or "animated." A loose consensus evolved in early English law that these events occurred at some point between conception and live birth.[22] This was "mediate animation." Although *134 Christian theology and the canon law came to fix the point of animation at 40 days for a male and 80 days for a female, a view that persisted until the 19th century, there was otherwise little agreement about the precise time of formation or animation. There was agreement, however, that prior to this point the fetus was to be regarded as part of the mother, and its destruction, therefore, was not homicide. Due to continued uncertainty about the precise time when animation occurred, to the lack of any empirical basis for the 40-80-day view, and perhaps to Aquinas' definition of movement as one of the two first principles of life, Bracton focused upon quickening as the critical point. The significance of quickening was echoed by later common-law scholars and found its way into the received common law in this country. Whether abortion of a quick fetus was a felony at common law, or even a lesser crime, is still disputed. Bracton, writing early in the 13th century, thought it homicide.[23] But the later and predominant view, following the great common-law scholars, has been that it was, at most, a lesser offense. In a frequently cited *135 passage, Coke took the position that abortion of a woman "quick with childe" is "a great misprision, and no murder."[24] Blackstone followed, saying that while abortion after quickening had once been considered manslaughter (though not murder), "modern law" took a less severe view.[25] A recent review of the common-law precedents argues, however, that those precedents contradict Coke and that even post-quickening abortion was never established as a common-law crime.[26] This is of some importance because while most American courts ruled, in holding or dictum, that abortion of an unquickened fetus was not criminal under their received common law,[27] others followed Coke in stating that abortion *136 of a quick fetus was a "misprision," a term they translated to mean "misdemeanor."[28] That their reliance on Coke on this aspect of the law was uncritical and, apparently in all the reported cases, dictum (due probably to the paucity of common-law prosecutions for post-quickening abortion), makes it now appear doubtful that abortion was ever firmly established as a common-law crime even with respect to the destruction of a quick fetus. 4. The English statutory law. England's first criminal abortion statute, Lord Ellenborough's Act, 43 Geo. 3, c. 58, came in 1803. It made abortion of a quick fetus, 1, a capital crime, but in 2 it provided lesser penalties for the felony of abortion before quickening, and thus preserved the "quickening" distinction. This contrast was continued in the general revision of 1828, 9 Geo. 4, c. 31, 13. It disappeared, however, together with the death penalty, in 1837, & 1 Vict., c. 85. 6, and did not reappear in the Offenses Against the Person Act of 1861, 24 & 25 Vict., c. 100, 59, that formed the core of English anti-abortion law until the liberalizing reforms of 1967. In 1929, the Infant Life (Preservation) Act, 19 & 20 Geo. 5, c. 34, came into being. Its emphasis was upon the destruction of "the life of a child capable of being born alive." It made a willful act performed with the necessary intent a felony. It contained a proviso that one was not to be *137 found guilty of the offense "unless it is proved that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother." A seemingly notable development in the English law was the case of Rex v. Bourne, [1939] 1 K. B. 687. This case apparently answered in the affirmative the question whether an abortion necessary to preserve the life of the pregnant woman was excepted from the criminal penalties of the 1861 Act. In his instructions to the jury, Judge Macnaghten referred to the 1929 Act, and observed that that Act related to "the case where a child is killed by a wilful act at the time when it is being delivered in the ordinary course of nature." He concluded that the 1861 Act's use of the word "unlawfully," imported the same meaning expressed by the specific proviso in the 1929 Act, even though there was no mention of preserving the mother's life in the 1861 Act. He then construed the phrase "preserving the life of the mother" broadly, that is, "in a reasonable sense," to include a serious and permanent threat to the mother's health, and instructed the jury to acquit Dr. Bourne if it found he had acted in a good-faith belief that the abortion was necessary for this purpose. The jury did acquit. Recently, Parliament enacted a new abortion law. This is the Abortion Act of 1967, 15 & 16 Eliz. 2, c. 87. The Act permits a licensed physician to perform an abortion where two other licensed physicians agree (a) "that the continuance of the pregnancy would involve risk to the life of the pregnant woman, or of injury to the physical or mental health of the pregnant woman or any existing children of her family, greater than if the pregnancy were terminated," or (b) "that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as *138 to be seriously handicapped." The Act also provides that, in making this determination, "account may be taken of the pregnant woman's actual or reasonably foreseeable environment." It also permits a physician, without the concurrence of others, to terminate a pregnancy where he is of the good-faith opinion that the abortion "is immediately necessary to save the life or to prevent grave permanent injury to the physical or mental health of the pregnant woman." 5. The American law. In this country, the law in effect in all but a few States until mid-19th century was the pre-existing English common law. the first State to enact abortion legislation, adopted in 1821 that part of Lord Ellenborough's Act that related to a woman "quick with child."[29] The death penalty was not imposed. Abortion before quickening was made a crime in that State only in 1860.[30] In 1828, New York enacted legislation[31] that, in two respects, was to serve as a model for early anti-abortion statutes. First, while barring destruction of an unquickened fetus as well as a quick fetus, it made the former only a misdemeanor, but the latter second-degree manslaughter. Second, it incorporated a concept of therapeutic abortion by providing that an abortion was excused if it "shall have been necessary to preserve the life of such mother, or shall have been advised by two physicians to be necessary for such purpose." By 1840, when Texas had received the common law,[32] only eight American States *139 had statutes dealing with abortion.[33] It was not until after the War Between the States that legislation began generally to replace the common law. Most of these initial statutes dealt severely with abortion after quickening but were lenient with it before quickening. Most punished attempts equally with completed abortions. While many statutes included the exception for an abortion thought by one or more physicians to be necessary to save the mother's life, that provision soon disappeared and the typical law required that the procedure actually be necessary for that purpose. Gradually, in the middle and late 19th century the quickening distinction disappeared from the statutory law of most States and the degree of the offense and the penalties were increased. By the end of the 1950's, a large majority of the jurisdictions banned abortion, however and whenever performed, unless done to save or preserve the life of the mother.[34] The exceptions, Alabama and the District of Columbia, permitted abortion to preserve the mother's health.[35] Three States permitted abortions that were not "unlawfully" performed or that were not "without lawful justification," leaving interpretation of those standards to the courts.[36] In *140 the past several years, however, a trend toward liberalization of abortion statutes has resulted in adoption, by about one-third of the States, of less stringent laws, most of them patterned after the ALI Model Penal Code, 230.3,[37] set forth as Appendix B to the opinion in post, p. 205. It is thus apparent that at common law, at the time of the adoption of our Constitution, and throughout the major portion of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect. Phrasing it another way, a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today. At least with respect to the early stage of pregnancy, and very possibly without such a limitation, the opportunity *141 to make this choice was present in this country well into the 19th century. Even later, the law continued for some time to treat less punitively an abortion procured in early pregnancy. 6. The position of the American Medical Association. The anti-abortion mood prevalent in this country in the late 19th century was shared by the medical profession. Indeed, the attitude of the profession may have played a significant role in the enactment of stringent criminal abortion legislation during that period. An AMA Committee on Criminal Abortion was appointed in May 1857. It presented its report, Trans. of the Am. Med. Assn. 73-78 (1859), to the Twelfth Annual Meeting. That report observed that the Committee had been appointed to investigate criminal abortion "with a view to its general suppression." It deplored abortion and its frequency and it listed three causes of "this general demoralization": "The first of these causes is a wide-spread popular ignorance of the true character of the crime a belief, even among mothers themselves, that the foetus is not alive till after the period of quickening. "The second of the agents alluded to is the fact that the profession themselves are frequently supposed careless of foetal life "The third reason of the frightful extent of this crime is found in the grave defects of our laws, both common and statute, as regards the independent and actual existence of the child before birth, as a living being. These errors, which are sufficient in most instances to prevent conviction, are based, and only based, upon mistaken and exploded medical dogmas. With strange inconsistency, the law fully acknowledges the foetus in utero and its inherent rights, for civil purposes; while personally and as criminally affected, it fails to recognize it, *142 and to its life as yet denies all protection." at 75-. The Committee then offered, and the Association adopted, resolutions protesting "against such unwarrantable destruction of human life," calling upon state legislatures to revise their abortion laws, and requesting the cooperation of state medical societies "in pressing the subject." In 1871 a long and vivid report was submitted by the Committee on Criminal Abortion. It ended with the "We had to deal with human life. In a matter of less importance we could entertain no compromise. An honest judge on the bench would call things by their proper names. We could do no less." 22 Trans. of the Am. Med. Assn. 258 (1871). It proffered resolutions, adopted by the Association, recommending, among other things, that it "be unlawful and unprofessional for any physician to induce abortion or premature labor, without the concurrent opinion of at least one respectable consulting physician, and then always with a view to the safety of the child if that be possible," and calling "the attention of the clergy of all denominations to the perverted views of morality entertained by a large class of femalesaye, and men also, on this important question." Except for periodic condemnation of the criminal abortionist, no further formal AMA action took place until 1967. In that year, the Committee on Human Reproduction urged the adoption of a stated policy of opposition to induced abortion, except when there is "documented medical evidence" of a threat to the health or life of the mother, or that the child "may be born with incapacitating physical deformity or mental deficiency," or that a pregnancy "resulting from legally established statutory or forcible rape or incest may constitute a threat to the mental or physical health of the *143 patient," two other physicians "chosen because of their recognized professional competence have examined the patient and have concurred in writing," and the procedure "is performed in a hospital accredited by the Joint Commission on Accreditation of Hospitals." The providing of medical information by physicians to state legislatures in their consideration of legislation regarding therapeutic abortion was "to be considered consistent with the principles of ethics of the American Medical Association." This recommendation was adopted by the House of Delegates. Proceedings of the AMA House of Delegates 40-51 In after the introduction of a variety of proposed resolutions, and of a report from its Board of Trustees, a reference committee noted "polarization of the medical profession on this controversial issue"; division among those who had testified; a difference of opinion among AMA councils and committees; "the remarkable shift in testimony" in six months, felt to be influenced "by the rapid changes in state laws and by the judicial decisions which tend to make abortion more freely available;" and a feeling "that this trend will continue." On June 25, the House of Delegates adopted preambles and most of the resolutions proposed by the reference committee. The preambles emphasized "the best interests of the patient," "sound clinical judgment," and "informed patient consent," in contrast to "mere acquiescence to the patient's demand." The resolutions asserted that abortion is a medical procedure that should be performed by a licensed physician in an accredited hospital only after consultation with two other physicians and in conformity with state law, and that no party to the procedure should be required to violate personally held moral principles.[38] Proceedings *144 of the AMA House of Delegates 220 The AMA Judicial Council rendered a complementary opinion.[39] 7. The position of the American Public Health Association. In October the Executive Board of the APHA adopted Standards for Abortion Services. These were five in number: "a. Rapid and simple abortion referral must be readily available through state and local public *145 health departments, medical societies, or other nonprofit organizations. "b. An important function of counselling should be to simplify and expedite the provision of abortion services; it should not delay the obtaining of these services. "c. Psychiatric consultation should not be mandatory. As in the case of other specialized medical services, psychiatric consultation should be sought for definite indications and not on a routine basis. "d. A wide range of individuals from appropriately trained, sympathetic volunteers to highly skilled physicians may qualify as abortion counselors. "e. Contraception and/or sterilization should be discussed with each abortion patient." Recommended Standards for Abortion Services, 61 Am. J. Pub. Health 396 Among factors pertinent to life and health risks associated with abortion were three that "are recognized as important": "a. the skill of the physician, "b. the environment in which the abortion is performed, and above all "c. the duration of pregnancy, as determined by uterine size and confirmed by menstrual history." It was said that "a well-equipped hospital" offers more protection "to cope with unforeseen difficulties than an office or clinic without such resources. The factor of gestational age is of overriding importance." Thus, it was recommended that abortions in the second trimester and early abortions in the presence of existing medical complications be performed in hospitals as inpatient procedures. For pregnancies in the first trimester, *146 abortion in the hospital with or without overnight stay "is probably the safest practice." An abortion in an extramural facility, however, is an acceptable alternative "provided arrangements exist in advance to admit patients promptly if unforeseen complications develop." Standards for an abortion facility were listed. It was said that at present abortions should be performed by physicians or osteopaths who are licensed to practice and who have "adequate training." 8. The position of the American Bar Association. At its meeting in February the ABA House of Delegates approved, with 17 opposing votes, the Uniform Abortion Act that had been drafted and approved the preceding August by the Conference of Commissioners on Uniform State Laws. 58 A. B. A. J. 380 We set forth the Act in full in the margin.[40] The *147 Conference has appended an enlightening Prefatory Note.[41] VII Three reasons have been advanced to explain historically the enactment of criminal abortion laws in the 19th century and to justify their continued existence. *148 It has been argued occasionally that these laws were the product of a Victorian social concern to discourage illicit sexual conduct. Texas, however, does not advance this justification in the present case, and it appears that no court or commentator has taken the argument seriously.[42] The appellants and amici contend, moreover, that this is not a proper state purpose at all and suggest that, if it were, the Texas statutes are overbroad in protecting it since the law fails to distinguish between married and unwed mothers. A second reason is concerned with abortion as a medical procedure. When most criminal abortion laws were first enacted, the procedure was a hazardous one for the woman.[43] This was particularly true prior to the *149 development of antisepsis. Antiseptic techniques, of course, were based on discoveries by Lister, Pasteur, and others first announced in 1867, but were not generally accepted and employed until about the turn of the century. Abortion mortality was high. Even after 1900, and perhaps until as late as the development of antibiotics in the 1940's, standard modern techniques such as dilation and curettage were not nearly so safe as they are today. Thus, it has been argued that a State's real concern in enacting a criminal abortion law was to protect the pregnant woman, that is, to restrain her from submitting to a procedure that placed her life in serious jeopardy. Modern medical techniques have altered this situation. Appellants and various amici refer to medical data indicating that abortion in early pregnancy, that is, prior to the end of the first trimester, although not without its risk, is now relatively safe. Mortality rates for women undergoing early abortions, where the procedure is legal, appear to be as low as or lower than the rates for normal childbirth.[44] Consequently, any interest of the State in protecting the woman from an inherently hazardous procedure, except when it would be equally dangerous for her to forgo it, has largely disappeared. Of course, important state interests in the areas of health and medical standards do remain. *150 The State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient. This interest obviously extends at least to the performing physician and his staff, to the facilities involved, to the availability of after-care, and to adequate provision for any complication or emergency that might arise. The prevalence of high mortality rates at illegal "abortion mills" strengthens, rather than weakens, the State's interest in regulating the conditions under which abortions are performed. Moreover, the risk to the woman increases as her pregnancy continues. Thus, the State retains a definite interest in protecting the woman's own health and safety when an abortion is proposed at a late stage of pregnancy. The third reason is the State's interestsome phrase it in terms of dutyin protecting prenatal life. Some of the argument for this justification rests on the theory that a new human life is present from the moment of conception.[45] The State's interest and general obligation to protect life then extends, it is argued, to prenatal life. Only when the life of the pregnant mother herself is at stake, balanced against the life she carries within her, should the interest of the embryo or fetus not prevail. Logically, of course, a legitimate state interest in this area need not stand or fall on acceptance of the belief that life begins at conception or at some other point prior to live birth. In assessing the State's interest, recognition may be given to the less rigid claim that as long as at least potential life is involved, the State may assert interests beyond the protection of the pregnant woman alone. *151 Parties challenging state abortion laws have sharply disputed in some courts the contention that a purpose of these laws, when enacted, was to protect prenatal life.[46] Pointing to the absence of legislative history to support the contention, they claim that most state laws were designed solely to protect the woman. Because medical advances have lessened this concern, at least with respect to abortion in early pregnancy, they argue that with respect to such abortions the laws can no longer be justified by any state interest. There is some scholarly support for this view of original purpose.[47] The few state courts called upon to interpret their laws in the late 19th and early 20th centuries did focus on the State's interest in protecting the woman's health rather than in preserving the embryo and fetus.[48] Proponents of this view point out that in many States, including Texas,[49] by statute or judicial interpretation, the pregnant woman herself could not be prosecuted for self-abortion or for cooperating in an abortion performed upon her by another.[50] They claim that adoption of the "quickening" distinction through received common *152 law and state statutes tacitly recognizes the greater health hazards inherent in late abortion and impliedly repudiates the theory that life begins at conception. It is with these interests, and the weight to be attached to them, that this case is concerned. VIII The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment, ; in the Fourth and Fifth Amendments, see ; in the penumbras of the Bill of Rights, -485; in the Ninth Amendment, ; or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment, see These decisions make it clear that only personal rights that can be deemed "fundamental" or "implicit in the concept of ordered liberty," Palko v. are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, ; procreation, ; contraception, -454; 463-465 *153 ; family relationships, ; and child rearing and education, This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation. On the basis of elements such as these, appellant and some amici argue that the woman's right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree. Appellant's arguments that Texas either has no valid interest at all in regulating the abortion decision, or no interest strong enough to support any limitation upon the woman's sole determination, are unpersuasive. The *154 Court's decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. The privacy right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one's body as one pleases bears a close relationship to the right of privacy previously articulated in the Court's decisions. The Court has refused to recognize an unlimited right of this kind in the past. ; We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation. We note that those federal and state courts that have recently considered abortion law challenges have reached the same conclusion. A majority, in addition to the District Court in the present case, have held state laws unconstitutional, at least in part, because of vagueness or because of overbreadth and abridgment of rights. appeal docketed, No. -56; appeal docketed, No. -730; appeal decided today, post, p. 179; appeal docketed, No. 70-105; ; ; appeal dismissed, ; cert. denied, ; Others have sustained state statutes. appeal docketed, No. -256; 318 F. Supp. 17 appeal docketed, No. 70-42; 322 F. Supp. 48 appeal docketed, No. 71-92; ; Doe v. Rampton appeal docketed, No. 71-5666; ; 257 So. 2d 8 ; 201 N.W.2d 3 appeal docketed, No. -631. Although the results are divided, most of these courts have agreed that the right of privacy, however based, is broad enough to cover the abortion decision; that the right, nonetheless, is not absolute and is subject to some limitations; and that at some point the state interests as to protection of health, medical standards, and prenatal life, become dominant. We agree with this approach. Where certain "fundamental rights" are involved, the Court has held that regulation limiting these rights may be justified only by a "compelling state interest," ; and that legislative enactments must be narrowly drawn to express only the legitimate state interests at stake. ; ; Cantwell v. ; see *156 405 U. S., 463-464 In the recent abortion cases, cited above, courts have recognized these principles. Those striking down state laws have generally scrutinized the State's interests in protecting health and potential life, and have concluded that neither interest justified broad limitations on the reasons for which a physician and his pregnant patient might decide that she should have an abortion in the early stages of pregnancy. Courts sustaining state laws have held that the State's determinations to protect health or prenatal life are dominant and constitutionally justifiable. IX The District Court held that the appellee failed to meet his burden of demonstrating that the Texas statute's infringement upon Roe's rights was necessary to support a compelling state interest, and that, although the appellee presented "several compelling justifications for state presence in the area of abortions," the statutes outstripped these justifications and swept "far beyond any areas of compelling state interest." 314 F. Supp., at 22-23. Appellant and appellee both contest that holding. Appellant, as has been indicated, claims an absolute right that bars any state imposition of criminal penalties in the area. Appellee argues that the State's determination to recognize and protect prenatal life from and after conception constitutes a compelling state interest. As noted above, we do not agree fully with either formulation. A. The appellee and certain amici argue that the fetus is a "person" within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development. If this suggestion of personhood is established, the appellant's case, of course, collapses, *157 for the fetus' right to life would then be guaranteed specifically by the Amendment. The appellant conceded as much on reargument.[51] On the other hand, the appellee conceded on reargument[52] that no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment. The Constitution does not define "person" in so many words. Section 1 of the Fourteenth Amendment contains three references to "person." The first, in defining "citizens," speaks of "persons born or naturalized in the United States." The word also appears both in the Due Process Clause and in the Equal Protection Clause. "Person" is used in other places in the Constitution: in the listing of qualifications for Representatives and Senators, Art. I, 2, cl. 2, and 3, cl. 3; in the Apportionment Clause, Art. I, 2, cl. 3;[53] in the Migration and Importation provision, Art. I, 9, cl. 1; in the Emolument Clause, Art. I, 9, cl. 8; in the Electors provisions, Art. II, 1, cl. 2, and the superseded cl. 3; in the provision outlining qualifications for the office of President, Art. II, 1, cl. 5; in the Extradition provisions, Art. IV, 2, cl. 2, and the superseded Fugitive Slave Clause 3; and in the Fifth, Twelfth, and Twenty-second Amendments, as well as in 2 and 3 of the Fourteenth Amendment. But in nearly all these instances, the use of the word is such that it has application only postnatally. None indicates, with any assurance, that it has any possible pre-natal application.[54] *158 All this, together with our that throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they are today, persuades us that the word "person," as used in the Fourteenth Amendment, does not include the unborn.[55] This is in accord with the results reached in those few cases where the issue has been squarely presented. ; appeal docketed, No. -434; appeal docketed, No. -730. Cf. at ; aff'd sub nom. ; ; Indeed, our decision in United inferentially is to the same effect, for we there would not have indulged in statutory interpretation favorable to abortion in specified circumstances if the necessary consequence was the termination of life entitled to Fourteenth Amendment protection. This conclusion, however, does not of itself fully answer the contentions raised by Texas, and we pass on to other considerations. B. The pregnant woman cannot be isolated in her privacy. She carries an embryo and, later, a fetus, if one accepts the medical definitions of the developing young in the human uterus. See Dorland's Illustrated Medical Dictionary -479, 547 The situation therefore is inherently different from marital intimacy, or bedroom possession of obscene material, or marriage, or procreation, or education, with which Eisenstadt and Griswold, Stanley, Loving, Skinner, and Pierce and Meyer were respectively concerned. As we have intimated above, it is reasonable and appropriate for a State to decide that at some point in time another interest, that of health of the mother or that of potential human life, becomes significantly involved. The woman's privacy is no longer sole and any right of privacy she possesses must be measured accordingly. Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception. We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer. *160 It should be sufficient to note briefly the wide divergence of thinking on this most sensitive and difficult question. There has always been strong support for the view that life does not begin until live birth. This was the belief of the Stoics.[56] It appears to be the predominant, though not the unanimous, attitude of the Jewish faith.[57] It may be taken to represent also the position of a large segment of the Protestant community, insofar as that can be ascertained; organized groups that have taken a formal position on the abortion issue have generally regarded abortion as a matter for the conscience of the individual and her family.[58] As we have noted, the common law found greater significance in quickening. Physicians and their scientific colleagues have regarded that event with less interest and have tended to focus either upon conception, upon live birth, or upon the interim point at which the fetus becomes "viable," that is, potentially able to live outside the mother's womb, albeit with artificial aid.[59] Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks.[60] The Aristotelian theory of "mediate animation," that held sway throughout the Middle Ages and the Renaissance in Europe, continued to be official Roman Catholic dogma until the 19th century, despite opposition to this "ensoulment" theory from those in the Church who would recognize the existence of life from *161 the moment of conception.[61] The latter is now, of course, the official belief of the Catholic Church. As one brief amicus discloses, this is a view strongly held by many non-Catholics as well, and by many physicians. Substantial problems for precise definition of this view are posed, however, by new embryological data that purport to indicate that conception is a "process" over time, rather than an event, and by new medical techniques such as menstrual extraction, the "morning-after" pill, implantation of embryos, artificial insemination, and even artificial wombs.[62] In areas other than criminal abortion, the law has been reluctant to endorse any theory that life, as we recognize it, begins before live birth or to accord legal rights to the unborn except in narrowly defined situations and except when the rights are contingent upon live birth. For example, the traditional rule of tort law denied recovery for prenatal injuries even though the child was born alive.[63] That rule has been changed in almost every jurisdiction. In most States, recovery is said to be permitted only if the fetus was viable, or at least quick, when the injuries were sustained, though few *162 courts have squarely so held.[64] In a recent development, generally opposed by the commentators, some States permit the parents of a stillborn child to maintain an action for wrongful death because of prenatal injuries.[65] Such an action, however, would appear to be one to vindicate the parents' interest and is thus consistent with the view that the fetus, at most, represents only the potentiality of life. Similarly, unborn children have been recognized as acquiring rights or interests by way of inheritance or other devolution of property, and have been represented by guardians ad litem.[66] Perfection of the interests involved, again, has generally been contingent upon live birth. In short, the unborn have never been recognized in the law as persons in the whole sense. X In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake. We repeat, however, that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman, whether she be a resident of the State or a nonresident who seeks medical consultation and treatment there, and that it has still another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman approaches *163 term and, at a point during pregnancy, each becomes "compelling." With respect to the State's important and legitimate interest in the health of the mother, the "compelling" point, in the light of present medical knowledge, is at approximately the end of the first trimester. This is so because of the now-established medical fact, referred to above at 149, that until the end of the first trimester mortality in abortion may be less than mortality in normal childbirth. It follows that, from and after this point, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health. Examples of permissible state regulation in this area are requirements as to the qualifications of the person who is to perform the abortion; as to the licensure of that person; as to the facility in which the procedure is to be performed, that is, whether it must be a hospital or may be a clinic or some other place of less-than-hospital status; as to the licensing of the facility; and the like. This means, on the other hand, that, for the period of pregnancy prior to this "compelling" point, the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient's pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State. With respect to the State's important and legitimate interest in potential life, the "compelling" point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion *164 during that period, except when it is necessary to preserve the life or health of the mother. Measured against these standards, Art. 1196 of the Texas Penal Code, in restricting legal abortions to those "procured or attempted by medical advice for the purpose of saving the life of the mother," sweeps too broadly. The statute makes no distinction between abortions performed early in pregnancy and those performed later, and it limits to a single reason, "saving" the mother's life, the legal justification for the procedure. The statute, therefore, cannot survive the constitutional attack made upon it here. This conclusion makes it unnecessary for us to consider the additional challenge to the Texas statute asserted on grounds of vagueness. See United -. XI To summarize and to repeat: 1. A state criminal abortion statute of the current Texas type, that excepts from criminality only a life-saving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment. (a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician. (b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health. (c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life *165 may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. 2. The State may define the term "physician," as it has been employed in the preceding paragraphs of this Part XI of this opinion, to mean only a physician currently licensed by the State, and may proscribe any abortion by a person who is not a physician as so defined. In post, p. 179, procedural requirements contained in one of the modern abortion statutes are considered. That opinion and this one, of course, are to be read together.[67] This holding, we feel, is consistent with the relative weights of the respective interests involved, with the lessons and examples of medical and legal history, with the lenity of the common law, and with the demands of the profound problems of the present day. The decision leaves the State free to place increasing restrictions on abortion as the period of pregnancy lengthens, so long as those restrictions are tailored to the recognized state interests. The decision vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important * state interests provide compelling justifications for intervention. Up to those points, the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician. If an individual practitioner abuses the privilege of exercising proper medical judgment, the usual remedies, judicial and intra-professional, are available. XII Our conclusion that Art. 1196 is unconstitutional means, of course, that the Texas abortion statutes, as a unit, must fall. The exception of Art. 1196 cannot be struck down separately, for then the State would be left with a statute proscribing all abortion procedures no matter how medically urgent the case. Although the District Court granted appellant Roe declaratory relief, it stopped short of issuing an injunction against enforcement of the Texas statutes. The Court has recognized that different considerations enter into a federal court's decision as to declaratory relief, on the one hand, and injunctive relief, on the other. v. Koota, ; We are not dealing with a statute that, on its face, appears to abridge free expression, an area of particular concern under Dombrowski and refined in Younger v. We find it unnecessary to decide whether the District Court erred in withholding injunctive relief, for we assume the Texas prosecutorial authorities will give full credence to this decision that the present criminal abortion statutes of that State are unconstitutional. The judgment of the District Court as to intervenor Hallford is reversed, and Dr. Hallford's complaint in intervention is dismissed. In all other respects, the judgment *167 of the District Court is affirmed. Costs are allowed to the appellee. It is so ordered. [For concurring opinion of MR. CHIEF JUSTICE BURGER, see post, p. 207.] [For concurring opinion of MR. JUSTICE DOUGLAS, see post, p. 209.] [For dissenting opinion of MR. JUSTICE WHITE, see post, p. 221.] MR. |
Justice Kennedy | second_dissenting | false | Young v. United Parcel Service, Inc. | 2015-03-25T00:00:00 | null | https://www.courtlistener.com/opinion/2788982/young-v-united-parcel-service-inc/ | https://www.courtlistener.com/api/rest/v3/clusters/2788982/ | 2,015 | 2014-027 | 2 | 6 | 3 | It seems to me proper, in joining JUSTICE SCALIA’s
dissent, to add these additional remarks. The dissent is
altogether correct to point out that petitioner here cannot
point to a class of her co-workers that was accommodated
and that would include her but for the particular limita-
tions imposed by her pregnancy. Many other workers
with health-related restrictions were not accommodated
either. And, in addition, there is no showing here of ani-
mus or hostility to pregnant women.
But as a matter of societal concern, indifference is quite
another matter. There must be little doubt that women
who are in the work force—by choice, by financial necessity,
or both—confront a serious disadvantage after becom-
ing pregnant. They may find it difficult to continue to
work, at least in their regular assignment, while still
taking necessary steps to avoid risks to their health and
the health of their future children. This is why the diffi-
culties pregnant women face in the workplace are and do
remain an issue of national importance.
“Historically, denial or curtailment of women’s employ-
ment opportunities has been traceable directly to the
pervasive presumption that women are mothers first, and
workers second.” Nevada Dept. of Human Resources v.
Hibbs, 538 U.S. 721, 736 (2003) (quoting The Parental
2 YOUNG v. UNITED PARCEL SERVICE, INC.
KENNEDY, J., dissenting
and Medical Leave Act of 1986: Joint Hearing before the
Subcommittee on Labor–Management Relations and the
Subcommittee on Labor Standards of the House Commit-
tee on Education and Labor, 99th Cong., 2d Sess., 100
(1986)). Such “attitudes about pregnancy and childbirth
. . . have sustained pervasive, often law-sanctioned, re-
strictions on a woman’s place among paid workers.”
AT&T Corp. v. Hulteen, 556 U.S. 701, 724 (2009)
(GINSBURG, J., dissenting). Although much progress has
been made in recent decades and many employers have
voluntarily adopted policies designed to recruit, accommo-
date, and retain employees who are pregnant or have
young children, see Brief for U. S. Women’s Chamber of
Commerce et al. as Amici Curiae 10–14, pregnant employ-
ees continue to be disadvantaged—and often discriminated
against—in the workplace, see Brief of Law Professors
et al. as Amici Curiae 37–38.
Recognizing the financial and dignitary harm caused by
these conditions, Congress and the States have enacted
laws to combat or alleviate, at least to some extent, the
difficulties faced by pregnant women in the work force.
Most relevant here, Congress enacted the Pregnancy
Discrimination Act (PDA), 42 U.S. C. §2000e(k), which
defines discrimination on the basis of pregnancy as sex
discrimination for purposes of Title VII and clarifies that
pregnant employees “shall be treated the same” as non-
pregnant employees who are “similar in their ability or
inability to work.” The PDA forbids not only disparate
treatment but also disparate impact, the latter of which
prohibits “practices that are not intended to discriminate
but in fact have a disproportionate adverse effect.” Ricci
v. DeStefano, 557 U.S. 557, 577 (2009). Congress further
enacted the parental-leave provision of the Family and
Medical Leave Act of 1993, 29 U.S. C. §2612(a)(1)(A),
which requires certain employers to provide eligible em-
ployees with 12 workweeks of leave because of the birth of
Cite as: 575 U. S. ____ (2015) 3
KENNEDY, J., dissenting
a child. And after the events giving rise to this litigation,
Congress passed the ADA Amendments Act of 2008, 122
Stat. 3553, which expands protections for employees with
temporary disabilities. As the parties note, Brief for Peti-
tioner 37–43; Brief for Respondent 21–22; Brief for United
States as Amicus Curiae 24–25, these amendments and
their implementing regulations, 29 CFR §1630 (2015),
may require accommodations for many pregnant employ-
ees, even though pregnancy itself is not expressly classi-
fied as a disability. Additionally, many States have en-
acted laws providing certain accommodations for pregnant
employees. See, e.g., Cal. Govt. Code Ann. §12945 (West
2011); La. Rev. Stat. Ann. §23:342(4) (West 2010); W. Va.
Code Ann. §5–11B–2 (Lexis Supp. 2014); see also Califor-
nia Fed. Sav. & Loan Assn. v. Guerra, 479 U.S. 272 (1987)
(holding that the PDA does not pre-empt such statutes).
These Acts honor and safeguard the important contribu-
tions women make to both the workplace and the Ameri-
can family.
Today the Court addresses only one of these legal pro-
tections: the PDA’s prohibition of disparate treatment.
For the reasons well stated in JUSTICE SCALIA’s dissenting
opinion, the Court interprets the PDA in a manner that
risks “conflation of disparate impact with disparate treat-
ment” by permitting a plaintiff to use a policy’s dispropor-
tionate burden on pregnant employees as evidence of
pretext. Ante, at 8; see ante, at 21–22 (opinion of the
Court). In so doing, the Court injects unnecessary confu-
sion into the accepted burden-shifting framework estab-
lished in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973).
With these remarks, I join JUSTICE SCALIA’s dissent. | It seems to me proper, in joining JUSTICE SCALIA’s dissent, to add these additional remarks. The dissent is altogether correct to point out that petitioner here cannot point to a class of her co-workers that was accommodated and that would include her but for the particular limita- tions imposed by her pregnancy. Many other workers with health-related restrictions were not accommodated either. And, in addition, there is no showing here of ani- mus or hostility to pregnant women. But as a matter of societal concern, indifference is quite another matter. There must be little doubt that women who are in the work force—by choice, by financial necessity, or both—confront a serious disadvantage after becom- ing pregnant. They may find it difficult to continue to work, at least in their regular assignment, while still taking necessary steps to avoid risks to their health and the health of their future children. This is why the diffi- culties pregnant women face in the workplace are and do remain an issue of national importance. “Historically, denial or curtailment of women’s employ- ment opportunities has been traceable directly to the pervasive presumption that women are mothers first, and workers second.” Nevada Dept. of Human Resources v. Hibbs, (quoting The Parental 2 YOUNG v. UNITED PARCEL SERVICE, INC. KENNEDY, J., dissenting and Medical Leave Act of 1986: Joint Hearing before the Subcommittee on Labor–Management Relations and the Subcommittee on Labor Standards of the House Commit- tee on Education and Labor, 99th Cong., 2d Sess., 100 (1986)). Such “attitudes about pregnancy and childbirth have sustained pervasive, often law-sanctioned, re- strictions on a woman’s place among paid workers.” AT&T (GINSBURG, J., dissenting). Although much progress has been made in recent decades and many employers have voluntarily adopted policies designed to recruit, accommo- date, and retain employees who are pregnant or have young children, see Brief for U. S. Women’s Chamber of Commerce et al. as Amici Curiae 10–14, pregnant employ- ees continue to be disadvantaged—and often discriminated against—in the workplace, see Brief of Law Professors et al. as Amici Curiae 37–38. Recognizing the financial and dignitary harm caused by these conditions, Congress and the States have enacted laws to combat or alleviate, at least to some extent, the difficulties faced by pregnant women in the work force. Most relevant here, Congress enacted the Pregnancy Discrimination Act (PDA), 42 U.S. C. which defines discrimination on the basis of pregnancy as sex discrimination for purposes of Title VII and clarifies that pregnant employees “shall be treated the same” as non- pregnant employees who are “similar in their ability or inability to work.” The PDA forbids not only disparate treatment but also disparate impact, the latter of which prohibits “practices that are not intended to discriminate but in fact have a disproportionate adverse effect.” Ricci v. DeStefano, Congress further enacted the parental-leave provision of the Family and Medical Leave Act of 1993, 29 U.S. C. which requires certain employers to provide eligible em- ployees with 12 workweeks of leave because of the birth of Cite as: 575 U. S. (2015) 3 KENNEDY, J., dissenting a child. And after the events giving rise to this litigation, Congress passed the ADA Amendments Act of 2008, 122 Stat. 3553, which expands protections for employees with temporary disabilities. As the parties note, Brief for Peti- tioner 37–43; Brief for Respondent 21–22; Brief for United States as Amicus Curiae 24–25, these amendments and their implementing regulations, (2015), may require accommodations for many pregnant employ- ees, even though pregnancy itself is not expressly classi- fied as a disability. Additionally, many States have en- acted laws providing certain accommodations for pregnant employees. See, e.g., Cal. Govt. Code Ann. (West 2011); La. Rev. Stat. Ann. (West 2010); W. Va. Code Ann. (Lexis Supp. 2014); see also Califor- nia Fed. Sav. & Loan (holding that the PDA does not pre-empt such statutes). These Acts honor and safeguard the important contribu- tions women make to both the workplace and the Ameri- can family. Today the Court addresses only one of these legal pro- tections: the PDA’s prohibition of disparate treatment. For the reasons well stated in JUSTICE SCALIA’s dissenting opinion, the Court interprets the PDA in a manner that risks “conflation of disparate impact with disparate treat- ment” by permitting a plaintiff to use a policy’s dispropor- tionate burden on pregnant employees as evidence of pretext. Ante, at 8; see ante, at 21–22 (opinion of the Court). In so doing, the Court injects unnecessary confu- sion into the accepted burden-shifting framework estab- lished in McDonnell Douglas (1973). With these remarks, I join JUSTICE SCALIA’s dissent. |
per_curiam | per_curiam | true | Hughes v. Rowe | 1980-11-10T00:00:00 | null | https://www.courtlistener.com/opinion/110352/hughes-v-rowe/ | https://www.courtlistener.com/api/rest/v3/clusters/110352/ | 1,980 | 1980-002 | 2 | 7 | 2 | Petitioner, an inmate of the Illinois state Penitentiary, asks us to review an order dismissing his civil rights action against the respondent corrections officers and directing him to pay counsel fees of $400 for services rendered by the Attorney General of Illinois in representing the respondents in that action.
After granting a motion to dismiss the complaint for failure to state a constitutional violation, the District Court ordered petitioner to show cause why fees of $400 should not be taxed against him under 42 U.S. C. § 1988. Because he did not respond to that order, the fee award was entered.[1] A motion to reconsider was later denied on the ground that petitioner's suit was "meritless."[2] The Court of Appeals disposed of the *7 novel question presented by petitioner by affirming the fee award in an unpublished order.[3] We now grant the motion for leave to proceed in forma pauperis and the petition for certiorari and reverse the judgment of the Court of Appeals.
I
On September 20, 1977, petitioner was charged with a violation of prison regulations and placed in segregation. At a disciplinary hearing two days later, petitioner admitted that *8 he and two other inmates had consumed a homemade alcoholic beverage; his punishment was confinement to segregation for 10 days,[4] demotion to C-grade, and loss of 30 days' statutory good time.
Petitioner exhausted his administrative remedies and then filed a complaint under 42 U.S. C. § 1983 in the United States District Court for the Northern District of Illinois on the form used by prisoners who are not represented by counsel. The facts stated on the form raised two federal questions of arguable merit: (1) the decision to place petitioner in a segregation cell on September 20, 1977, was not preceded by a hearing and was not justified by any emergency or other necessity; (2) two of the officers who conducted the disciplinary hearing after petitioner had been in segregation for two days were biased against him.[5] Respondents, represented by the State Attorney General's Office, moved to dismiss the complaint, but filed no affidavits denying or explaining the facts alleged by petitioner. After allowing petitioner to file various amendments and additional papers, the District *9 Court dismissed the complaint without taking any evidence. Thereafter the fee award was made.
In its order affirming the action of the District Court, the Court of Appeals correctly noted that the Due Process Clause of the Fourteenth Amendment affords a prisoner certain minimum procedural safeguards before disciplinary action may be taken against him.[6] Because the record did not reveal a violation of those safeguards at the hearing on September 22, the Court of Appeals concluded that the complaint had been properly dismissed. However, the Court of Appeals seems to have overlooked the fact, clearly stated in petitioner's brief on appeal, that the disciplinary hearing did not take place until two days after petitioner was placed in segregation on September 20. Nothing in the papers filed on behalf of the respondents purports to justify or explain the segregation of petitioner for two days in advance of the disciplinary hearing.
II
Petitioner's complaint, like most prisoner complaints filed in the Northern District of Illinois, was not prepared by counsel. It is settled law that the allegations of such a complaint, "however inartfully pleaded" are held "to less stringent standards than formal pleadings drafted by lawyers . . . ." Haines v. Kerner, 404 U.S. 519, 520 (1972). See also Maclin v. Paulson, 627 F.2d 83, 86 (CA7 1980); French v. *10 Heyne, 547 F.2d 994, 996 (CA7 1976). Such a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Haines, supra, at 520-521.[7] And, of course, the allegations of the complaint are generally taken as true for purposes of a motion to dismiss. Cruz v. Beto, 405 U.S. 319, 322 (1972).
Applying these principles to petitioner's amended complaint we conclude that all but one of its allegations were properly dismissed for failure to state a claim. Petitioner's allegations of bias and procedural irregularities in the September 22 hearing, unequal treatment, and cruel and unusual punishment, even when liberally construed, were insufficient to require any further proceedings in the District Court. We therefore affirm the dismissal of these claims.
Petitioner's allegation that he had been confined unnecessarily to segregation is of a different character. It can be construed as a contention that his confinement to segregation violated due process because it took place without a prior hearing. It is clear from the facts alleged in the amended complaint that petitioner was confined in segregation for two days before a hearing was held. Indeed, petitioner expressly stated this claim in procedural due process terms in his response to the defendants' motion to dismiss the amended complaint.[8]
*11 Segregation of a prisoner without a prior hearing may violate due process if the postponement of procedural protections is not justified by apprehended emergency conditions. See Hayes v. Walker, 555 F.2d 625, 633 (CA7), cert. denied, 434 U.S. 959 (1977). The amended complaint alleged that segregation was unnecessary in petitioner's case because his offense did not involve violence and he did not present a "clear and present danger." There is no suggestion in the record that immediate segregation was necessitated by emergency conditions. Defendants did make the unsworn assertion that petitioner was placed in segregation on "temporary investigative status,"[9] but the significance of this designation is unclear and it does not, without more, dispose of petitioner's procedural due process claim. The District Court, in dismissing the amended complaint, merely concluded that temporary segregation *12 pending investigation was not actionable.[10] The court cited an Illinois Department of Corrections Administrative Regulation which authorized segregation of prisoners pending investigation of disciplinary matters, where required "in the interest of institutional security and safety."[11] In the absence of any showing that concern for institutional security and safety was the basis for immediate segregation of petitioner without a prior hearing, this regulation does not justify dismissal of petitioner's suit for failure to state a claim.
Our discussion of this claim is not intended to express any view on its merits. We conclude merely that the amended complaint was adequate at least to require some response from the defendants, by way of affidavit or otherwise, to petitioner's claim that he was unjustifiably placed in segregation without a prior hearing. Although petitioner's pleadings are prolix and lacking in stylistic precision, this is not a case like Estelle v. Gamble, 429 U.S. 97 (1976), in which a pro se litigant's detailed recitation of the facts reveals on its face the insufficiency of the complaint. We cannot say with assurance that petitioner can prove no set of facts in support of his claim *13 entitling him to relief. Haines v. Kerner, 404 U. S., at 521. Accordingly, the Court of Appeals should have reversed the dismissal of this claim and remanded for further proceedings.[12]
*14 III
The award of attorney's fees entered against petitioner must be vacated.
In Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978), we held that the defendant in an action brought under Title VII of the Civil Rights Act of 1964 may recover attorney's fees from the plaintiff only if the District Court finds "that the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith." Id., at 421. Although arguably a different standard might be applied in a civil rights action under 42 U.S. C. § 1983, we can perceive no reason for applying a less stringent standard. The plaintiff's action must be meritless in the sense that it is groundless or without foundation. The fact that a plaintiff may ultimately lose his case is not in itself a sufficient justification for the assessment of fees. As we stated in Christiansburg:
"To take the further step of assessing attorney's fees against plaintiffs simply because they do not finally prevail *15 would substantially add to the risks inhering in most litigation and would undercut the efforts of Congress to promote the vigorous enforcement of the provisions of Title VII. Hence, a plaintiff should not be assessed his opponent's attorney's fees unless a court finds that his claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so." 434 U.S., at 422.
No such finding supported the fee award in this case.
These limitations apply with special force in actions initiated by uncounseled prisoners. Faithful adherence to the principles of Haines v. Kerner dictates that attorney's fees should rarely be awarded against such plaintiffs. The fact that a prisoner's complaint, even when liberally construed, cannot survive a motion to dismiss does not, without more, entitle the defendant to attorney's fees. An unrepresented litigant should not be punished for his failure to recognize subtle factual or legal deficiencies in his claims. As the Court noted in Christiansburg, even if the law or the facts are somewhat questionable or unfavorable at the outset of litigation, a party may have an entirely reasonable ground for bringing suit. 434 U.S., at 422.
Despite the lower court's conclusion to the contrary, the allegations of petitioner's amended complaint are definitely not meritless in the Christiansburg sense. Even those allegations that were properly dismissed for failure to state a claim deserved and received the careful consideration of both the District Court and the Court of Appeals.[13] Allegations that, *16 upon careful examination, prove legally insufficient to require a trial are not, for that reason alone, "groundless" or "without foundation" as required by Christiansburg.
The judgment of the Court of Appeals is affirmed in part and reversed in part and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
THE CHIEF JUSTICE would grant the petition and set the case for oral argument.
JUSTICE STEWART would affirm the judgment of the Court of Appeals insofar as it affirmed the District Court's dismissal of the petitioner's complaint. He substantially agrees, however, with what is said in Part III of the Court's per curiam opinion, and for those reasons would reverse the judgment insofar as it affirmed the award of attorney's fees entered against the petitioner.
JUSTICE WHITE, concurring in part and concurring in the result.
I agree with the result reached in Part II of the per curiam opinion. Under Wolf v. McDonnell, 418 U.S. 539 (1974), a prior hearing was required for the particular disciplinary action involved heresegregation and loss of good time. But as Wolf makes clear, Fourteenth Amendment procedural protections were triggered only because under state lawhere prison regulationssegregation and good-time reductions could be imposed only for serious disciplinary lapses and only after a prior hearing.[1] Under these regulations, segregation *17 prior to a hearing could occur only for reasons of prison security and safety.[2] I agree that there have been no findings that warranted dispensing with the prior hearing.
It is well to point out, however, that although petitioner sought compensatory and punitive damages, as well as declaratory relief, he had a full hearing within 48 hours of his confinement, his guilt was properly established (indeed, he admitted his conduct as he had before), and the discipline imposed on him was found to be justified. Even if petitioner is successful in proving a due process deprivation, his damages would be limited to those flowing from postponement of a hearing for two days. Under Carey v. Piphus, 435 U.S. 247 (1978), it is likely that only nominal damages would be awardable.
I am in accord with Part III of the Court's opinion. | Petitioner, an inmate of the Illinois state Penitentiary, asks us to review an order dismissing his civil rights action against the respondent corrections officers and directing him to pay counsel fees of $400 for services rendered by the Attorney General of Illinois in representing the respondents in that action. After granting a motion to dismiss the complaint for failure to state a constitutional violation, the District Court ordered petitioner to show cause why fees of $400 should not be taxed against him under 42 U.S. C. 1988. Because he did not respond to that order, the fee award was entered.[1] A motion to reconsider was later denied on the ground that petitioner's suit was "meritless."[2] The Court of Appeals disposed of the *7 novel question presented by petitioner by affirming the fee award in an unpublished order.[3] We now grant the motion for leave to proceed in forma pauperis and the petition for certiorari and reverse the judgment of the Court of Appeals. I On September 20, 1977, petitioner was charged with a violation of prison regulations and placed in segregation. At a disciplinary hearing two days later, petitioner admitted that *8 he and two other inmates had consumed a homemade alcoholic beverage; his punishment was confinement to segregation for 10 days,[4] demotion to C-grade, and loss of 30 days' statutory good time. Petitioner exhausted his administrative remedies and then filed a complaint under 42 U.S. C. 1983 in the United States District Court for the Northern District of Illinois on the form used by prisoners who are not represented by counsel. The facts stated on the form raised two federal questions of arguable merit: (1) the decision to place petitioner in a segregation cell on September 20, 1977, was not preceded by a hearing and was not justified by any emergency or other necessity; (2) two of the officers who conducted the disciplinary hearing after petitioner had been in segregation for two days were biased against him.[5] Respondents, represented by the State Attorney General's Office, moved to dismiss the complaint, but filed no affidavits denying or explaining the facts alleged by petitioner. After allowing petitioner to file various amendments and additional papers, the District *9 Court dismissed the complaint without taking any evidence. Thereafter the fee award was made. In its order affirming the action of the District Court, the Court of Appeals correctly noted that the Due Process Clause of the Fourteenth Amendment affords a prisoner certain minimum procedural safeguards before disciplinary action may be taken against him.[6] Because the record did not reveal a violation of those safeguards at the hearing on September 22, the Court of Appeals concluded that the complaint had been properly dismissed. However, the Court of Appeals seems to have overlooked the fact, clearly stated in petitioner's brief on appeal, that the disciplinary hearing did not take place until two days after petitioner was placed in segregation on September 20. Nothing in the papers filed on behalf of the respondents purports to justify or explain the segregation of petitioner for two days in advance of the disciplinary hearing. II Petitioner's complaint, like most prisoner complaints filed in the Northern District of Illinois, was not prepared by counsel. It is settled law that the allegations of such a complaint, "however inartfully pleaded" are held "to less stringent standards than formal pleadings drafted by lawyers" See also ; Such a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. at -521.[7] And, of course, the allegations of the complaint are generally taken as true for purposes of a motion to dismiss. Applying these principles to petitioner's amended complaint we conclude that all but one of its allegations were properly dismissed for failure to state a claim. Petitioner's allegations of bias and procedural irregularities in the September 22 hearing, unequal treatment, and cruel and unusual punishment, even when liberally construed, were insufficient to require any further proceedings in the District Court. We therefore affirm the dismissal of these claims. Petitioner's allegation that he had been confined unnecessarily to segregation is of a different character. It can be construed as a contention that his confinement to segregation violated due process because it took place without a prior hearing. It is clear from the facts alleged in the amended complaint that petitioner was confined in segregation for two days before a hearing was held. Indeed, petitioner expressly stated this claim in procedural due process terms in his response to the defendants' motion to dismiss the amended complaint.[8] *11 Segregation of a prisoner without a prior hearing may violate due process if the postponement of procedural protections is not justified by apprehended emergency conditions. See (CA7), cert. denied, The amended complaint alleged that segregation was unnecessary in petitioner's case because his offense did not involve violence and he did not present a "clear and present danger." There is no suggestion in the record that immediate segregation was necessitated by emergency conditions. Defendants did make the unsworn assertion that petitioner was placed in segregation on "temporary investigative status,"[9] but the significance of this designation is unclear and it does not, without more, dispose of petitioner's procedural due process claim. The District Court, in dismissing the amended complaint, merely concluded that temporary segregation *12 pending investigation was not actionable.[10] The court cited an Illinois Department of Corrections Administrative Regulation which authorized segregation of prisoners pending investigation of disciplinary matters, where required "in the interest of institutional security and safety."[11] In the absence of any showing that concern for institutional security and safety was the basis for immediate segregation of petitioner without a prior hearing, this regulation does not justify dismissal of petitioner's suit for failure to state a claim. Our discussion of this claim is not intended to express any view on its merits. We conclude merely that the amended complaint was adequate at least to require some response from the defendants, by way of affidavit or otherwise, to petitioner's claim that he was unjustifiably placed in segregation without a prior hearing. Although petitioner's pleadings are prolix and lacking in stylistic precision, this is not a case like in which a pro se litigant's detailed recitation of the facts reveals on its face the insufficiency of the complaint. We cannot say with assurance that petitioner can prove no set of facts in support of his claim *13 entitling him to relief. Accordingly, the Court of Appeals should have reversed the dismissal of this claim and remanded for further proceedings.[12] *14 III The award of attorney's fees entered against petitioner must be vacated. In Christiansburg Garment we held that the defendant in an action brought under Title VII of the Civil Rights Act of 1964 may recover attorney's fees from the plaintiff only if the District Court finds "that the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith." Although arguably a different standard might be applied in a civil rights action under 42 U.S. C. 1983, we can perceive no reason for applying a less stringent standard. The plaintiff's action must be meritless in the sense that it is groundless or without foundation. The fact that a plaintiff may ultimately lose his case is not in itself a sufficient justification for the assessment of fees. As we stated in Christiansburg: "To take the further step of assessing attorney's fees against plaintiffs simply because they do not finally prevail *15 would substantially add to the risks inhering in most litigation and would undercut the efforts of Congress to promote the vigorous enforcement of the provisions of Title VII. Hence, a plaintiff should not be assessed his opponent's attorney's fees unless a court finds that his claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so." No such finding supported the fee award in this case. These limitations apply with special force in actions initiated by uncounseled prisoners. Faithful adherence to the principles of dictates that attorney's fees should rarely be awarded against such plaintiffs. The fact that a prisoner's complaint, even when liberally construed, cannot survive a motion to dismiss does not, without more, entitle the defendant to attorney's fees. An unrepresented litigant should not be punished for his failure to recognize subtle factual or legal deficiencies in his claims. As the Court noted in Christiansburg, even if the law or the facts are somewhat questionable or unfavorable at the outset of litigation, a party may have an entirely reasonable ground for bringing Despite the lower court's conclusion to the contrary, the allegations of petitioner's amended complaint are definitely not meritless in the Christiansburg sense. Even those allegations that were properly dismissed for failure to state a claim deserved and received the careful consideration of both the District Court and the Court of Appeals.[13] Allegations that, *16 upon careful examination, prove legally insufficient to require a trial are not, for that reason alone, "groundless" or "without foundation" as required by Christiansburg. The judgment of the Court of Appeals is affirmed in part and reversed in part and the case is remanded for further proceedings consistent with this opinion. It is so ordered. THE CHIEF JUSTICE would grant the petition and set the case for oral argument. JUSTICE STEWART would affirm the judgment of the Court of Appeals insofar as it affirmed the District Court's dismissal of the petitioner's complaint. He substantially agrees, however, with what is said in Part III of the Court's per curiam opinion, and for those reasons would reverse the judgment insofar as it affirmed the award of attorney's fees entered against the petitioner. JUSTICE WHITE, concurring in part and concurring in the result. I agree with the result reached in Part II of the per curiam opinion. Under a prior hearing was required for the particular disciplinary action involved heresegregation and loss of good time. But as Wolf makes clear, Fourteenth Amendment procedural protections were triggered only because under state lawhere prison regulationssegregation and good-time reductions could be imposed only for serious disciplinary lapses and only after a prior hearing.[1] Under these regulations, segregation *17 prior to a hearing could occur only for reasons of prison security and safety.[2] I agree that there have been no findings that warranted dispensing with the prior hearing. It is well to point out, however, that although petitioner sought compensatory and punitive damages, as well as declaratory relief, he had a full hearing within 48 hours of his confinement, his guilt was properly established (indeed, he admitted his conduct as he had before), and the discipline imposed on him was found to be justified. Even if petitioner is successful in proving a due process deprivation, his damages would be limited to those flowing from postponement of a hearing for two days. Under it is likely that only nominal damages would be awardable. I am in accord with Part III of the Court's opinion. |
Justice Alito | dissenting | false | Rehaif v. United States | 2019-06-21T00:00:00 | null | https://www.courtlistener.com/opinion/4631841/rehaif-v-united-states/ | https://www.courtlistener.com/api/rest/v3/clusters/4631841/ | 2,019 | null | null | null | null | 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 Stevens | dissenting | true | Illinois v. Batchelder | 1983-07-06T00:00:00 | null | https://www.courtlistener.com/opinion/111022/illinois-v-batchelder/ | https://www.courtlistener.com/api/rest/v3/clusters/111022/ | 1,983 | 1982-166 | 1 | 6 | 3 | This case comes to us from an intermediate Illinois appellate court. It is a case that the Illinois Supreme Court declined to review. Its practical consequences concern the amount of detail that Illinois police officers in the Third Appellate District must include in an affidavit supporting a petition to suspend a driver's license. In final analysis the only question presented relates to how an Illinois statute is to be implemented in one part of the State. I suspect that the Illinois Supreme Court may have decided not to take this case because it preferred to address the question presented in a case in which both parties would be adequately represented.
The only paper filed in behalf of the losing party in this Court reads, in full, as follows:
Court Clerk;
Re: Illinois vs: Milton D. Batchelder
No: 82-947
In regard to your letter of 3-31-83 pertaining to the above captioned matter.
*1120 I have a heart problem and am unemployed.
I do not have the funds to hire an attorney.
Is it possible for the court to appoint me counsel or for the court to rule on the record that is on appeal?
I am unlearned at law and have had little formal education.
Unless the court can give me some help I will not be able to pursue this matter.
This letter written by;
Donald E. Worlow
302 Pontiac Rd.
Marquette Hgts., Ill. 61554
For Milton D. Batchelder
/s/ Milton Batchelder
If a case is important enough to merit a decision on the merits by this Court, I believe it also should be important enough to justify the appointment of counsel to represent the party defending the judgment of the court below. I respectfully dissent from the Court's summary disposition.
| This case comes to us from an intermediate Illinois appellate court. It is a case that the Illinois Supreme Court declined to review. Its practical consequences concern the amount of detail that Illinois police officers in the Third Appellate District must include in an affidavit supporting a petition to suspend a driver's license. In final analysis the only question presented relates to how an Illinois statute is to be implemented in one part of the State. I suspect that the Illinois Supreme Court may have decided not to take this case because it preferred to address the question presented in a case in which both parties would be adequately represented. The only paper filed in behalf of the losing party in this Court reads, in full, as follows: Court Clerk; Re: Illinois vs: Milton D. Batchelder No: 82-947 In regard to your letter of 3-31-83 pertaining to the above captioned matter. *1120 I have a heart problem and am unemployed. I do not have the funds to hire an attorney. Is it possible for the court to appoint me counsel or for the court to rule on the record that is on appeal? I am unlearned at law and have had little formal education. Unless the court can give me some help I will not be able to pursue this matter. This letter written by; Donald E. Worlow 302 Pontiac Rd. Marquette Hgts., Ill. 61554 For Milton D. Batchelder /s/ Milton Batchelder If a case is important enough to merit a decision on the merits by this Court, I believe it also should be important enough to justify the appointment of counsel to represent the party defending the judgment of the court below. I respectfully dissent from the Court's summary disposition. |
Justice Marshall | dissenting | false | Ponte v. Real | 1985-05-20T00:00:00 | null | https://www.courtlistener.com/opinion/111430/ponte-v-real/ | https://www.courtlistener.com/api/rest/v3/clusters/111430/ | 1,985 | 1984-098 | 1 | 6 | 2 | The court below held there must be "some support in the record" for the denial of an inmate's right to call witnesses at a prison disciplinary hearing. Rejecting this position, the Court today concludes that the Constitution requires only that prison officials explain in court, many months or years after a disciplinary hearing, why they refused to hear particular witnesses. I cannot accept that alleged denials of the vital constitutional right to present witnesses are to be reviewed, not on the basis of an administrative record, but rather on the basis of post hoc courtroom rationalizations. I believe the Constitution requires that a contemporaneous-record explanation for such a denial be prepared at the time *505 of the hearing. The record need not be disclosed to the inmate but would be available to a court should judicial review later be sought. Upon a proper showing that security or other needs of prison officials so require, the court could review the contemporaneous-record explanation in camera. That this process is compatible with the prison setting is demonstrated by the fact that the recording of contemporaneous reasons for denying requests to call witnesses is the current practice in federal prisons and in most state prisons in this country.
I
The facts of this case, which the Court declines to relate in full, highlight the importance of the right to call witnesses at disciplinary hearings. As the Court describes, respondent John Real was among a group of inmates who left the prison metal shop to observe a fight between an inmate and guard that had broken out in an adjacent office. A supervising officer, John Baleyko, ordered Real and the others to leave the area. The Court blandly observes that Real "did not depart." Ante, at 493. Real's version of the events, however, is considerably more detailed. According to Real, as he began to leave, a dozen or so correctional officers entered the office, one of whom, Officer Doolin, stopped Real for a brief shakedown search and questioning. Officer Baleyko then looked up and noticed that Real was still in the office despite the order to leave. When Real tried to explain that he had been unable to leave because he had been stopped by the other officer, Officer Baleyko cut short Real's explanation and ordered him locked up. On its face, Real's explanation for his failure to obey the order to leave is perfectly plausible, internally consistent, and does not contradict any of the undisputed facts.
Real's disciplinary hearing, then, involved a classic swearing match: Officer Baleyko offered one version of the facts, and Real countered with another version. Under these circumstances, testimony from observers of the incident would *506 seem highly relevant to, and perhaps even dispositive of, the question of Real's responsibility for his failure to obey the order to leave. Real therefore requested that three witnesses be produced for the disciplinary hearing: two inmates who had allegedly been present in the metal shop at the time of the incident and a correctional officer.[1] The disciplinary board, composed of three correctional officials, refused to hear any of these witnesses. No reason for excluding this seemingly highly relevant testimony was given at the time. No reason can be deciphered from the record, and indeed no explanation has ever been offered for the refusal to hear these witnesses. Real was found guilty and eventually was deprived of 150 days of good-time credit a near 5-month prison term on a charged offense against which his only opportunity to defend was to offer his word against that of a prison guard.
II
The Court acknowledges that Real had a constitutional right to present his defense witnesses unless his disciplinary board had a legitimate basis for excluding them. This much is clear from Wolff v. McDonnell, 418 U.S. 539 (1974). Drawing on longstanding principles of due process embodied in the Fifth, Sixth, and Fourteenth Amendments,[2] the Court in Wolff recognized what might be called a "qualified" constitutional right to call witnesses:
"[T]he inmate facing disciplinary proceedings should be allowed to call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals." Id., at 566.
See also Baxter v. Palmigiano, 425 U.S. 308, 321 (1976). This qualified right was one element in what the Court *507 described as an overall effort to create a "reasonable" and "mutual accommodation" between the "provisions of the Constitution" and "the needs of the institution" in the context of disciplinary hearings. 418 U.S., at 556, 572.
Wolff did not consider how best to strike that reasonable accommodation with respect to implementing the right to call witnesses.[3] Two options are presented today. The first would require disciplinary boards to enter on the record contemporaneous written reasons for their exclusion of witnesses; these explanations, while not necessarily available to the inmate, would be subject to judicial review to assure that exclusion of witnesses was not arbitrary but rather was based on permissible factors. The second option would only require disciplinary boards to offer post hoc, courtroom rationalizations for a board's refusal to hear requested witnesses; these rationalizations would constitute attempts to justify the board's actions, many months, or years, after a witness had been excluded.
Inexplicably, the Court, with only passing consideration of the first option, chooses the second. But no basis for this choice can be found in the principle of "mutual accommodation" announced in Wolff. If Wolff's principle of mutual accommodation means, as the State contends, that an inmate "is entitled only to those facets of procedural due process which are consistent with the demands of prison security,"[4] it surely also means that the inmate is entitled to all the facets of due process that are consistent with the demands of prison security. Contemporaneous explanations for excluding witnesses are an important element of due process at disciplinary hearings and, as long as prison officials have the option of keeping these explanations from the inmate, a requirement that such explanations be recorded would not *508 intrude on the "institutional needs and objectives" of prisons that Wolff identified. In the face of this readily available means of enforcing the inmate's right, the Court's decision instead to choose the second option, that of after-the-fact courtroom explanations, gratuitously dilutes the constitutional rights of prison inmates and fulfills my previously expressed fear that the "noble holdings" of Wolff would become "little more than empty promises." Wolff, supra, at 581 (opinion of MARSHALL, J.). I therefore dissent.
III
A contemporaneous-explanation requirement would strike the proper balance between the inmate's right to present defense witnesses and the institutional needs recognized in Wolff. As a general matter, it is now well understood that contemporaneous-explanation requirements serve two important functions. First, they promote a decisionmaking process in which the decisionmaker must consciously focus on the relevant statutory criteria of decision.[5] Knowledge that a decision will be tested against the justifications contemporaneously given for it increases the prospect that fair and nonarbitrary decisions will be made initially.
Second, judicial review is most meaningful when based on a record compiled before litigation began. Post hoc rationalizations of counsel for administrative action "have traditionally been found to be an inadequate basis for review." Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 419 (1971):
"[A]n advocate's hypothesis that an administrative decision-maker did in fact conclude thus-and-such because *509 the record shows that he could reasonably have concluded thus-and-such, is not likely to be highly impressive. The courts prefer to appraise the validity of an order by examining the grounds shown by the record to have been the basis of decision." W. Gellhorn, C. Byse, & P. Strauss, Administrative Law 361 (7th ed., 1979).
Indeed, even when decisionmakers themselves have been willing to submit affidavits to explain with hindsight the basis of their previous decisions, we have refused to consider such offers of proof for fear that they serve as merely "post hoc rationalizations." Burlington Truck Lines v. United States, 371 U.S. 156, 168-169 (1962). The best evidence of why a decision was made as it was is usually an explanation, however brief, rendered at the time of the decision.
The considerations that call for contemporaneous-explanation requirements in some contexts apply with particular force in the setting of prison disciplinary hearings. A contemporaneous-explanation requirement would force boards to take the inmate's constitutional right to present witnesses seriously. And when inmates are allowed to call witnesses, the fairness and accuracy of disciplinary board findings are significantly affected, not only because witnesses are often crucial to the presentation of a defense,[6] but particularly because an inmate "obviously faces a severe credibility problem when trying to disprove the charges of a prison *510 guard." 418 U.S., at 583 (opinion of MARSHALL, J.). Many of the other procedural due process rights recognized in Wolff for example, the right to advance notice of the charges, to a hearing, and to a statement of evidence and reasoning relied on make sense only if the inmate is allowed to present his or her version of the facts through witnesses and evidence. Apart from such witnesses and evidence, inmates have little else with which to attempt to prove their case or disprove that of the charging officer; they have no constitutional right to confront and cross-examine adverse witnesses, and counsel is typically not present at these hearings to marshal the inmate's case. Wolff, 418 U. S., at 568; see also Baxter, 425 U. S., at 321-322. That so much hinges on the right to present witnesses is a particularly compelling reason for assuring, through a requirement of written reasons when witnesses are excluded, that the right is being scrupulously honored. See Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458, 472 (1981) (STEVENS, J., dissenting);[7] cf. Harris v. Rivera, 454 U.S. 339, 344-345, n. 11 (1981) (per curiam) ("[W]hen other procedural safeguards have minimized the risk of unfairness, there is a diminished justification for requiring a judge to explain his rulings").
Moreover, post hoc rationalizations are unlikely to be of any practical use in this context. Board officials may well not remember, long after the fact, the actual reasons they refused to hear a particular witness in any given case.[8] As *511 one Court of Appeals has concluded, "[t]he requirement of support in the administrative record is central to the effectiveness of judicial review in insuring that a prisoner has not been subjected to arbitrary action by prison officials." Hayes v. Thompson, 637 F.2d 483, 488 (CA7 1980).
These very reasons have led the Court to impose a contemporaneous-explanation requirement when virtually identical procedural rights, guaranteed by the Constitution, were at stake.[9]Vitek v. Jones, 445 U.S. 480 (1980), is an example directly on point. There the Court held that an inmate being considered for transfer to a mental institution has a constitutional right to a pretransfer hearing and to present witnesses at that hearing. To this point, Vitek is on all fours with this case; inmates in both proceedings have a right to a hearing and to witnesses. Yet in Vitek the Court further recognized that witnesses could not be excluded except upon a legitimate record finding of good cause the very requirement the Court today chooses not to extend to disciplinary hearings.[10] Similarly, Gagnon v. Scarpelli, 411 U.S. 778 *512 (1973), recognized a due process right to counsel under some circumstances at parole and probation revocation hearings. To assure that this important right was faithfully honored, we further held that "[i]n every case in which a request for counsel at a preliminary or final hearing is refused, the grounds for refusal should be stated succinctly in the record." Id., at 791. See also North Carolina v. Pearce, 395 U.S. 711, 726 (1969) (written reasons required when more severe sentence imposed on defendant after second trial); Gagnon, supra (written reasons required for probation revocation); Morrissey v. Brewer, 408 U.S. 471, 489 (1972) (same for parole revocation decisions); Goldberg v. Kelly, 397 U.S. 254, 271 (1970) (written reasons for termination of public assistance payments); Kent v. United States, 383 U.S. 541, 561 (1966) (written reason required when juvenile court waives jurisdiction, subjecting defendant to trial as adult).
Ignoring these precedents, the Court seems to view the question simply as one of policy; the Court is content that "significant arguments" can be made in favor either of its "approach" or of the result I believe is required. The question, however, is not whether sound penological practice favors one result or the other, but rather what minimal elements of fair process are required in this setting to satisfy the Constitution. Due process requires written reasons for decisions, or for steps in the decisionmaking process, when the individual interest at stake makes the contribution of such reasons to the fairness and reliability of the hearing sufficient to outweigh whatever burdens such a requirement would impose on the government. See Black v. Romano, post, at 617-619 (MARSHALL, J., concurring) (collecting cases); see generally Mathews v. Eldridge, 424 U.S. 319, 335, 343 (1976).
Applying this principle here, there can be little doubt that due process requires disciplinary boards to provide written reasons for refusing to hear witnesses. The liberty interests at stake in these hearings are, of course, of serious magnitude, *513 and the right to call witnesses is integral to assuring the fairness and accuracy of these hearings. Moreover, the reality that disciplinary boards, composed of correctional officials, may be overly inclined to accept the word of prison guards and refuse without reason to hear witnesses cannot be ignored. These hearings include only skeletal due process protections to begin with, which makes judicial review essential to assuring the fairness and reliability of the process as a whole. Yet because extra-record judicial review is likely to be so meaningless a protection of the constitutional right to call witnesses, the process due an inmate requires witness exclusions to be justified with contemporaneous explanations. The Court simply fails to come to grips with the issue of constitutional right posed by this case.
Established principles of procedural due process compel the conclusion that contemporaneous explanations are required for refusals of disciplinary boards to hear requested witnesses. At least in the absence of convincing considerations otherwise, that much should be clear. I turn, then, to consider whether such convincing considerations can be found.
IV
The Court in Wolff identified two considerations that limit the due process rights inmates otherwise have: "institutional safety and correctional goals." 418 U.S., at 566. The proposal offered by respondent sealed contemporaneous explanations followed by in camera review would satisfy these concerns fully. At the same time, this proposal maximizes the ability of the inmate to enjoy his or her constitutional right to present defense witnesses. The proposal therefore constitutes a perfectly sensible, "reasonable accommodation" to the concerns identified in Wolff.
A. Institutional Hazards and the Threat of Reprisal
The primary factor that caused the Court in Wolff to qualify and restrict the right to call witnesses was said to be "institutional *514 safety." Fearing that inmates might be "subject to the unwritten code that exhorts immates not to inform on a fellow prisoner," id., at 562, and concerned that honoring a witness request might subject the witness to "a risk of reprisal or [might] undermine authority," the Court concluded that the "hazards presented in individual cases" of "reprisal" against testifying inmates made dangerous the disclosure to a charged inmate of a board's reasons for refusing to hear his witnesses. Id., at 566. Again today, the Court relies on "the very real dangers in prison life which may result from violence or intimidation directed at either other inmates or staff." Ante, at 495. Presumably, the Court's concern is that an inmate will intimidate or coerce defense witnesses into testifying falsely, and that a witness who goes to officials to disclose such threats will be the target of retaliation if a disciplinary board announces that "institutional safety" precludes it from hearing the witness.[11]
The option of sealed files, subject to later judicial review in camera,[12] would fully protect against the threat of reprisal and intimidation by allowing prison officials to refuse to disclose to the inmate those record statements they feared would compromise institutional safety. The in camera solution *515 has been widely recognized as the appropriate response to a variety of analogous disclosure clashes involving individual rights and government secrecy needs. For example, after this Court in McCray v. Illinois, 386 U.S. 300 (1967), held that the identity of informants relied on by the police need not always be disclosed to the defense at suppression hearings, lower courts turned to in camera hearings to "protect the interests of both the government and the defendant." W. LaFave, Search and Seizure § 3.3, p. 583 (1978). Through such hearings into informant identity, "the government can be protected from any significant, unnecessary impairment of secrecy, yet the defendant can be saved from what could be serious police misconduct." United States v. Moore, 522 F.2d 1068, 1073 (CA9 1975).[13] Similarly, Congress specifically invoked in camera review to balance the policies of disclosure and confidentiality contained in the exemptions to the Freedom of Information Act. 5 U.S. C. § 552(a)(4)(B). Congress stated that in camera review would "plainly be [the] necessary and appropriate" means in many circumstances to assure that the proper balance between secrecy and disclosure is struck. S. Rep. No. 93-1200, p. 9 (1974). Other examples in which Congress has turned to similar procedures abound, such as the federal wiretapping statute[14] and the Foreign Intelligence Surveillance Act of 1978,[15] both of which rely on closed judicial process to balance individual rights and Government secrecy needs in determining whether wiretapping is justified.
If the compelling Government secrecy needs in all these settings can be safeguarded fully through closed judicial process, *516 it can hardly be gainsaid that the interest of prison officials in keeping confidential the basis for refusing to hear witnesses will be fully protected by the same process. Indeed, the in camera solution protects the institutional concerns with which the Court purports to be concerned just as well as does the Court's solution. Under the Court's approach, "prison officials at some point [must] state their reason for refusing to call witnesses . . . ." Ante, at 492. But if institutional safety or reprisal threats formed the basis for the refusal, stating that reason[16] in open court would create hazards similar to those the Court relies on to eschew a requirement that these reasons be disclosed at the disciplinary hearing. Recognizing this fact, the Court holds that, "if prison security or similar paramount interests appear to require it," ante, at 499, the courtroom justifications for refusing to hear a witness can "in the first instance," ibid., be presented in camera.[17] Yet once the Court acknowledges that in camera review adequately protects the "institutional safety" concerns discussed in Wolff, such concerns simply evaporate in the consideration of whether due process demands a contemporaneous-record explanation for the refusal to hear witnesses. As even the Court acknowledges, then, the combination of sealed files and in camera review more than adequately protects "institutional safety," the primary factor that justified Wolff's qualification of the inmate's right to present defense witnesses.
B. Other Correctional Goals
To restrict the right to call witnesses, the Court in Wolff also relied, although less centrally, on vaguely defined "correctional *517 goals" that seemed to amount to the need for "swift punishment." 418 U.S., at 566. Again today, the Court invokes the "need to provide swift discipline in individual cases," ante, at 495, as a basis for refusing to require that prison officials provide a record statement of reasons for declining to hear requested witnesses.
These statements provide unconvincing support for refusing to require a written explanation when witness requests are denied. If swift discipline is a legitimate overriding concern, then why hold hearings at all? And if the imperatives of swift discipline preclude the calling of witnesses in any particular case, stating that reason would suffice.
More generally, the twinkling of an eye that it would take for a board to offer brief, contemporaneous reasons for refusing to hear witnesses would hardly interfere with any valid correctional goals. Indeed, the requirement of stated reasons for witness denials would be particularly easy to comply with at disciplinary hearings, for Wolff already requires provision of a " `written statement by the factfinders as to the evidence relied on and reasons' for the disciplinary action." 418 U.S., at 564 (citation omitted). To include in this statement a brief explanation of the reason for refusing to hear a witness, such as why proffered testimony is "irrelevant" or "cumulative," could not credibly be said to burden disciplinary boards in any meaningful way in their task of completing disciplinary report forms.
I have expressed previously my view that:
"[I]t is not burdensome to give reasons when reasons exist. . . .
". . . As long as the government has a good reason for its actions it need not fear disclosure. It is only where the government acts improperly that procedural due process is truly burdensome. And that is precisely when it is most necessary." Board of Regents v. Roth, 408 U.S. 564, 591 (1972) (dissenting).
If ever that view is true, it is surely true here. See also Hewitt v. Helms, 459 U.S. 460, 495 (1983) (STEVENS, J., dissenting) *518 ("[A] requirement of written reasons [for keeping inmates in segregation] would [not] impose an undue burden on prison officials").
Ironically, the Court's shortsighted approach will likely do more to undermine other "correctional goals" with which the Court purports to be concerned than would respondent's approach. According to the Court, prison officials must come to court, many months or years after a disciplinary hearing, to "state their reason for refusing to call witnesses. . . ." Ante, at 492. The burdens of discovery and cross-examination could well be part of that litigation process.[18] In contrast, under respondent's approach, once a contemporaneous record was prepared, judicial review would normally be limited to review of that record. Cf. SEC v. Chenery Corp., 332 U.S. 194, 196 (1947). Thus, whatever the proper bearing of other "correctional goals" on the inmate's constitutional right to call witnesses, reliance on those goals to hold that prison officials must explain their refusal to hear witnesses in court, rather than in the record, is simply misplaced.
V
In the end, the Court's decision rests more on abstract generalities about the demands of "institutional safety and other correctional goals" rather than on any attempt to come to grips with the specific mechanics of the way in which the principle established below would operate. Yet even these abstract generalities founder on the concrete practical experience of those charged with the continuing implementation of Wolff. The requirement the Court declines to adopt today is the prevailing practice in federal prisons and in state prisons throughout the country. Regulations promulgated *519 by the Federal Bureau of Prisons provide that an inmate in federal prison has
"the right to submit names of requested witnesses and have them called to testify . . . provided the calling of witnesses . . . does not jeopardize or threaten institutional or an individual's security. . . . The chairman shall document reasons for declining to call requested witnesses in the [Institutional Disciplinary Committee] report." 28 CFR § 541.17 (c) (1984) (emphasis added).
Similarly, at least 29 States and the District of Columbia require their disciplinary boards to provide a record statement of reasons for the refusal to hear requested witnesses.[19]
*520 In addition, the practice of preparing contemporaneous explanations for the refusal to hear witnesses is favored by experts who have devoted substantial time and resources to studying the problem and who know quite well what the needs of institutional safety are in this context. For example, the American Correctional Association (ACA), after a study funded by the Department of Justice, has adopted the following standard as an "essential" element of disciplinary-hearing procedures:
"Written policy and procedure provide that the inmate is given an opportunity to make a statement and present documentary evidence, and may request witnesses on his/her behalf; reasons for the denial of such a request are stated in writing" (emphasis added). ACA Standards for Adult Correctional Institutions, Standard 2-4363 (2d ed. 1981).
Similarly, the National Conference of Commissioners on Uniform State Laws (NCUSL) has determined that whenever an inmate's request for a witness is denied, the hearing officer must make "a written factual finding that to [call the witness] would subject a person to a substantial risk of physical harm." NCUSL, Model Sentencing and Correction Act § 4-507 (1979). A third study of this problem reached the same conclusion: "Reasons for disallowing prisoners' requests *521 for appearance of witnesses should be recorded for purposes of future review." ABA Standards for Criminal Justice 23-3.2, p. 23.41, n. 14 (2d ed. 1980) (as added 1983).
These authorities testify to the fact that, as penological experts have implemented Wolff over the last 11 years, significantly more has been learned about the sorts of due process protections at disciplinary hearings that are compatible with institutional needs. Recognizing that it was taking a tentative first step in this area, the Court in Wolff acknowledged that events in future years might "require further consideration and reflection of this Court." 418 U.S., at 572. At the time of Wolff, the only option considered by both the majority and dissenting opinions was whether disciplinary boards ought to be required to "state" their reasons for refusing to hear requested witnesses, see id., at 584 (opinion of MARSHALL, J.); id., at 597-598 (opinion of Douglas, J.); this option seemingly implied disclosure to the inmate. But neither the Court nor the dissenting opinions considered the middle-ground alternative respondent proposes today: that a contemporaneous record be prepared and preserved in case of later legal challenge but not be available to the inmate. The failure to consider this alternative is not surprising, for at the time of Wolff the relevant question was simply whether inmates had any right at all to present witnesses; no federal court had yet considered whether reasons had to be given for denying this right, let alone whether such reasons could be recorded but preserved in a file to which the inmate would not have access. Id., at 572, n. 20.[20] Nor was the process of in camera review, upon which respondent's alternative depends, as common a solution to clashes between individual rights and government secrecy needs as it is today. Yet despite these developments, and despite Wolff's expectation that future developments would make clearer the proper balance between due process and institutional concerns, the *522 Court today inexplicably ignores the evolution of legal approaches and penological policy in this area.[21]
VI
The Court's decision leaves the inmate's constitutional right to present defense witnesses dangling in the wind. *523 Perhaps that is the virtue to the Court of its decision, for I certainly can discern no other basis, grounded in principle or sound reasoning, for it. Wolff may give prison officials a privilege to dispense with certain due process rights, but, as always, "[t]he scope of a privilege is limited by its underlying purpose." Roviaro v. United States, 353 U.S. 53, 60 (1957). The underlying purposes of the privilege recognized in Wolff the promotion of "institutional safety and correctional goals" can be realized fully by contemporaneous explanations not disclosed to the inmate. For that reason, the privilege recognized in Wolff ought to evaporate in the face of this means of accommodating the inmate's due process rights. That is the conclusion of penological officials and experts throughout the country and my conclusion as well. The Court, however, concludes otherwise. I therefore dissent.
| The court below held there must be "some support in the record" for the denial of an inmate's right to call witnesses at a prison disciplinary hearing. Rejecting this position, the Court today concludes that the Constitution requires only that prison officials explain in court, many months or years after a disciplinary hearing, why they refused to hear particular witnesses. I cannot accept that alleged denials of the vital constitutional right to present witnesses are to be reviewed, not on the basis of an administrative record, but rather on the basis of post hoc courtroom rationalizations. I believe the Constitution requires that a contemporaneous-record explanation for such a denial be prepared at the time *505 of the hearing. The record need not be disclosed to the inmate but would be available to a court should judicial review later be sought. Upon a proper showing that security or other needs of prison officials so require, the court could review the contemporaneous-record explanation in camera. That this process is compatible with the prison setting is demonstrated by the fact that the recording of contemporaneous reasons for denying requests to call witnesses is the current practice in federal prisons and in most state prisons in this country. I The facts of this case, which the Court declines to relate in full, highlight the importance of the right to call witnesses at disciplinary As the Court describes, respondent John Real was among a group of inmates who left the prison metal shop to observe a fight between an inmate and guard that had broken out in an adjacent office. A supervising officer, John Baleyko, ordered Real and the others to leave the area. The Court blandly observes that Real "did not depart." Ante, at 493. Real's version of the events, however, is considerably more detailed. According to Real, as he began to leave, a dozen or so correctional officers entered the office, one of whom, Officer Doolin, stopped Real for a brief shakedown search and questioning. Officer Baleyko then looked up and noticed that Real was still in the office despite the order to leave. When Real tried to explain that he had been unable to leave because he had been stopped by the other officer, Officer Baleyko cut short Real's explanation and ordered him locked up. On its face, Real's explanation for his failure to obey the order to leave is perfectly plausible, internally consistent, and does not contradict any of the undisputed facts. Real's disciplinary hearing, then, involved a classic swearing match: Officer Baleyko offered one version of the facts, and Real countered with another version. Under these circumstances, testimony from observers of the incident would *506 seem highly relevant to, and perhaps even dispositive of, the question of Real's responsibility for his failure to obey the order to leave. Real therefore requested that three witnesses be produced for the disciplinary hearing: two inmates who had allegedly been present in the metal shop at the time of the incident and a correctional officer.[1] The disciplinary board, composed of three correctional officials, refused to hear any of these witnesses. No reason for excluding this seemingly highly relevant testimony was given at the time. No reason can be deciphered from the record, and indeed no explanation has ever been offered for the refusal to hear these witnesses. Real was found guilty and eventually was deprived of 150 days of good-time credit a near 5-month prison term on a charged offense against which his only opportunity to defend was to offer his word against that of a prison guard. II The Court acknowledges that Real had a constitutional right to present his defense witnesses unless his disciplinary board had a legitimate basis for excluding them. This much is clear from Drawing on longstanding principles of due process embodied in the Fifth, Sixth, and Fourteenth Amendments,[2] the Court in Wolff recognized what might be called a "qualified" constitutional right to call witnesses: "[T]he inmate facing disciplinary proceedings should be allowed to call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals." See also This qualified right was one element in what the Court *507 described as an overall effort to create a "reasonable" and "mutual accommodation" between the "provisions of the Constitution" and "the needs of the institution" in the context of disciplinary 572. Wolff did not consider how best to strike that reasonable accommodation with respect to implementing the right to call witnesses.[3] Two options are presented today. The first would require disciplinary boards to enter on the record contemporaneous written reasons for their exclusion of witnesses; these explanations, while not necessarily available to the inmate, would be subject to judicial review to assure that exclusion of witnesses was not arbitrary but rather was based on permissible factors. The second option would only require disciplinary boards to offer post hoc, courtroom rationalizations for a board's refusal to hear requested witnesses; these rationalizations would constitute attempts to justify the board's actions, many months, or years, after a witness had been excluded. Inexplicably, the Court, with only passing consideration of the first option, chooses the second. But no basis for this choice can be found in the principle of "mutual accommodation" announced in Wolff. If Wolff's principle of mutual accommodation means, as the State contends, that an inmate "is entitled only to those facets of procedural due process which are consistent with the demands of prison security,"[4] it surely also means that the inmate is entitled to all the facets of due process that are consistent with the demands of prison security. Contemporaneous explanations for excluding witnesses are an important element of due process at disciplinary hearings and, as long as prison officials have the option of keeping these explanations from the inmate, a requirement that such explanations be recorded would not *508 intrude on the "institutional needs and objectives" of prisons that Wolff identified. In the face of this readily available means of enforcing the inmate's right, the Court's decision instead to choose the second option, that of after-the-fact courtroom explanations, gratuitously dilutes the constitutional rights of prison inmates and fulfills my previously expressed fear that the "noble holdings" of Wolff would become "little more than empty promises." Wolff, I therefore dissent. III A contemporaneous-explanation requirement would strike the proper balance between the inmate's right to present defense witnesses and the institutional needs recognized in Wolff. As a general matter, it is now well understood that contemporaneous-explanation requirements serve two important functions. First, they promote a decisionmaking process in which the decisionmaker must consciously focus on the relevant statutory criteria of decision.[5] Knowledge that a decision will be tested against the justifications contemporaneously given for it increases the prospect that fair and nonarbitrary decisions will be made initially. Second, judicial review is most meaningful when based on a record compiled before litigation began. Post hoc rationalizations of counsel for administrative action "have traditionally been found to be an inadequate basis for review." Citizens to Preserve Overton : "[A]n advocate's hypothesis that an administrative decision-maker did in fact conclude thus-and-such because *509 the record shows that he could reasonably have concluded thus-and-such, is not likely to be highly impressive. The courts prefer to appraise the validity of an order by examining the grounds shown by the record to have been the basis of decision." W. Gellhorn, C. Byse, & P. Strauss, Administrative Law 361 (7th ed., 1979). Indeed, even when decisionmakers themselves have been willing to submit affidavits to explain with hindsight the basis of their previous decisions, we have refused to consider such offers of proof for fear that they serve as merely "post hoc rationalizations." Burlington Truck The best evidence of why a decision was made as it was is usually an explanation, however brief, rendered at the time of the decision. The considerations that call for contemporaneous-explanation requirements in some contexts apply with particular force in the setting of prison disciplinary A contemporaneous-explanation requirement would force boards to take the inmate's constitutional right to present witnesses seriously. And when inmates are allowed to call witnesses, the fairness and accuracy of disciplinary board findings are significantly affected, not only because witnesses are often crucial to the presentation of a defense,[6] but particularly because an inmate "obviously faces a severe credibility problem when trying to disprove the charges of a prison *510 guard." Many of the other procedural due process rights recognized in Wolff for example, the right to advance notice of the charges, to a hearing, and to a statement of evidence and reasoning relied on make sense only if the inmate is allowed to present his or her version of the facts through witnesses and evidence. Apart from such witnesses and evidence, inmates have little else with which to attempt to prove their case or disprove that of the charging officer; they have no constitutional right to confront and cross-examine adverse witnesses, and counsel is typically not present at these hearings to marshal the inmate's case. Wolff, ; see also 425 U. S., at -322. That so much hinges on the right to present witnesses is a particularly compelling reason for assuring, through a requirement of written reasons when witnesses are excluded, that the right is being scrupulously honored. See Connecticut Bd. of ;[7] cf. ("[W]hen other procedural safeguards have minimized the risk of unfairness, there is a diminished justification for requiring a judge to explain his rulings"). Moreover, post hoc rationalizations are unlikely to be of any practical use in this context. Board officials may well not remember, long after the fact, the actual reasons they refused to hear a particular witness in any given case.[8] As *511 one Court of Appeals has concluded, "[t]he requirement of support in the administrative record is central to the effectiveness of judicial review in insuring that a prisoner has not been subjected to arbitrary action by prison officials." These very reasons have led the Court to impose a contemporaneous-explanation requirement when virtually identical procedural rights, guaranteed by the Constitution, were at is an example directly on point. There the Court held that an inmate being considered for transfer to a mental institution has a constitutional right to a pretransfer hearing and to present witnesses at that hearing. To this point, Vitek is on all fours with this case; inmates in both proceedings have a right to a hearing and to witnesses. Yet in Vitek the Court further recognized that witnesses could not be excluded except upon a legitimate record finding of good cause the very requirement the Court today chooses not to extend to disciplinary [10] Similarly, recognized a due process right to counsel under some circumstances at parole and probation revocation To assure that this important right was faithfully honored, we further held that "[i]n every case in which a request for counsel at a preliminary or final hearing is refused, the grounds for refusal should be stated succinctly in the record." See also North ; ; ; ; Ignoring these precedents, the Court seems to view the question simply as one of policy; the Court is content that "significant arguments" can be made in favor either of its "approach" or of the result I believe is required. The question, however, is not whether sound penological practice favors one result or the other, but rather what minimal elements of fair process are required in this setting to satisfy the Constitution. Due process requires written reasons for decisions, or for steps in the decisionmaking process, when the individual interest at stake makes the contribution of such reasons to the fairness and reliability of the hearing sufficient to outweigh whatever burdens such a requirement would impose on the government. See Black v. Romano, post, at 617-619 (MARSHALL, J., concurring) (collecting cases); see generally Applying this principle here, there can be little doubt that due process requires disciplinary boards to provide written reasons for refusing to hear witnesses. The liberty interests at stake in these hearings are, of course, of serious magnitude, *513 and the right to call witnesses is integral to assuring the fairness and accuracy of these Moreover, the reality that disciplinary boards, composed of correctional officials, may be overly inclined to accept the word of prison guards and refuse without reason to hear witnesses cannot be ignored. These hearings include only skeletal due process protections to begin with, which makes judicial review essential to assuring the fairness and reliability of the process as a whole. Yet because extra-record judicial review is likely to be so meaningless a protection of the constitutional right to call witnesses, the process due an inmate requires witness exclusions to be justified with contemporaneous explanations. The Court simply fails to come to grips with the issue of constitutional right posed by this case. Established principles of procedural due process compel the conclusion that contemporaneous explanations are required for refusals of disciplinary boards to hear requested witnesses. At least in the absence of convincing considerations otherwise, that much should be clear. I turn, then, to consider whether such convincing considerations can be found. IV The Court in Wolff identified two considerations that limit the due process rights inmates otherwise have: "institutional safety and correctional goals." 418 U.S., The proposal offered by respondent sealed contemporaneous explanations followed by in camera review would satisfy these concerns fully. At the same time, this proposal maximizes the ability of the inmate to enjoy his or her constitutional right to present defense witnesses. The proposal therefore constitutes a perfectly sensible, "reasonable accommodation" to the concerns identified in Wolff. A. Institutional Hazards and the Threat of Reprisal The primary factor that caused the Court in Wolff to qualify and restrict the right to call witnesses was said to be "institutional *514 safety." Fearing that inmates might be "subject to the unwritten code that exhorts immates not to inform on a fellow prisoner," and concerned that honoring a witness request might subject the witness to "a risk of reprisal or [might] undermine authority," the Court concluded that the "hazards presented in individual cases" of "reprisal" against testifying inmates made dangerous the disclosure to a charged inmate of a board's reasons for refusing to hear his witnesses. Again today, the Court relies on "the very real dangers in prison life which may result from violence or intimidation directed at either other inmates or staff." Ante, at Presumably, the Court's concern is that an inmate will intimidate or coerce defense witnesses into testifying falsely, and that a witness who goes to officials to disclose such threats will be the target of retaliation if a disciplinary board announces that "institutional safety" precludes it from hearing the witness.[11] The option of sealed files, subject to later judicial review in camera,[12] would fully protect against the threat of reprisal and intimidation by allowing prison officials to refuse to disclose to the inmate those record statements they feared would compromise institutional safety. The in camera solution *515 has been widely recognized as the appropriate response to a variety of analogous disclosure clashes involving individual rights and government secrecy needs. For example, after this Court in held that the identity of informants relied on by the police need not always be disclosed to the defense at suppression hearings, lower courts turned to in camera hearings to "protect the interests of both the government and the defendant." W. LaFave, Search and Seizure 3.3, p. 583 (1978). Through such hearings into informant identity, "the government can be protected from any significant, unnecessary impairment of secrecy, yet the defendant can be saved from what could be serious police misconduct." United[13] Similarly, Congress specifically invoked in camera review to balance the policies of disclosure and confidentiality contained in the exemptions to the Freedom of Information Act. 5 U.S. C. 552(a)(4)(B). Congress stated that in camera review would "plainly be [the] necessary and appropriate" means in many circumstances to assure that the proper balance between secrecy and disclosure is struck. S. Rep. No. 93-1200, p. 9 Other examples in which Congress has turned to similar procedures abound, such as the federal wiretapping statute[14] and the Foreign Intelligence Surveillance Act of 1978,[15] both of which rely on closed judicial process to balance individual rights and Government secrecy needs in determining whether wiretapping is justified. If the compelling Government secrecy needs in all these settings can be safeguarded fully through closed judicial process, *516 it can hardly be gainsaid that the interest of prison officials in keeping confidential the basis for refusing to hear witnesses will be fully protected by the same process. Indeed, the in camera solution protects the institutional concerns with which the Court purports to be concerned just as well as does the Court's solution. Under the Court's approach, "prison officials at some point [must] state their reason for refusing to call witnesses" Ante, at 492. But if institutional safety or reprisal threats formed the basis for the refusal, stating that reason[16] in open court would create hazards similar to those the Court relies on to eschew a requirement that these reasons be disclosed at the disciplinary hearing. Recognizing this fact, the Court holds that, "if prison security or similar paramount interests appear to require it," ante, at 499, the courtroom justifications for refusing to hear a witness can "in the first instance," ib be presented in camera.[17] Yet once the Court acknowledges that in camera review adequately protects the "institutional safety" concerns discussed in Wolff, such concerns simply evaporate in the consideration of whether due process demands a contemporaneous-record explanation for the refusal to hear witnesses. As even the Court acknowledges, then, the combination of sealed files and in camera review more than adequately protects "institutional safety," the primary factor that justified Wolff's qualification of the inmate's right to present defense witnesses. B. Other Correctional Goals To restrict the right to call witnesses, the Court in Wolff also relied, although less centrally, on vaguely defined "correctional *517 goals" that seemed to amount to the need for "swift punishment." 418 U.S., Again today, the Court invokes the "need to provide swift discipline in individual cases," ante, at as a basis for refusing to require that prison officials provide a record statement of reasons for declining to hear requested witnesses. These statements provide unconvincing support for refusing to require a written explanation when witness requests are denied. If swift discipline is a legitimate overriding concern, then why hold hearings at all? And if the imperatives of swift discipline preclude the calling of witnesses in any particular case, stating that reason would suffice. More generally, the twinkling of an eye that it would take for a board to offer brief, contemporaneous reasons for refusing to hear witnesses would hardly interfere with any valid correctional goals. Indeed, the requirement of stated reasons for witness denials would be particularly easy to comply with at disciplinary hearings, for Wolff already requires provision of a " `written statement by the factfinders as to the evidence relied on and reasons' for the disciplinary action." To include in this statement a brief explanation of the reason for refusing to hear a witness, such as why proffered testimony is "irrelevant" or "cumulative," could not credibly be said to burden disciplinary boards in any meaningful way in their task of completing disciplinary report forms. I have expressed previously my view that: "[I]t is not burdensome to give reasons when reasons exist. ". As long as the government has a good reason for its actions it need not fear disclosure. It is only where the government acts improperly that procedural due process is truly burdensome. And that is precisely when it is most necessary." Board of If ever that view is true, it is surely true here. See also *518 ("[A] requirement of written reasons [for keeping inmates in segregation] would [not] impose an undue burden on prison officials"). Ironically, the Court's shortsighted approach will likely do more to undermine other "correctional goals" with which the Court purports to be concerned than would respondent's approach. According to the Court, prison officials must come to court, many months or years after a disciplinary hearing, to "state their reason for refusing to call witnesses." Ante, at 492. The burdens of discovery and cross-examination could well be part of that litigation process.[18] In contrast, under respondent's approach, once a contemporaneous record was prepared, judicial review would normally be limited to review of that record. Cf. Thus, whatever the proper bearing of other "correctional goals" on the inmate's constitutional right to call witnesses, reliance on those goals to hold that prison officials must explain their refusal to hear witnesses in court, rather than in the record, is simply misplaced. V In the end, the Court's decision rests more on abstract generalities about the demands of "institutional safety and other correctional goals" rather than on any attempt to come to grips with the specific mechanics of the way in which the principle established below would operate. Yet even these abstract generalities founder on the concrete practical experience of those charged with the continuing implementation of Wolff. The requirement the Court declines to adopt today is the prevailing practice in federal prisons and in state prisons throughout the country. Regulations promulgated *519 by the Federal Bureau of Prisons provide that an inmate in federal prison has "the right to submit names of requested witnesses and have them called to testify provided the calling of witnesses does not jeopardize or threaten institutional or an individual's security. The chairman shall document reasons for declining to call requested witnesses in the [Institutional Disciplinary Committee] report." 28 CFR 541.17 (1984) (emphasis added). Similarly, at least 29 States and the District of Columbia require their disciplinary boards to provide a record statement of reasons for the refusal to hear requested witnesses.[19] *520 In addition, the practice of preparing contemporaneous explanations for the refusal to hear witnesses is favored by experts who have devoted substantial time and resources to studying the problem and who know quite well what the needs of institutional safety are in this context. For example, the American Correctional Association (ACA), after a study funded by the Department of Justice, has adopted the following standard as an "essential" element of disciplinary-hearing procedures: "Written policy and procedure provide that the inmate is given an opportunity to make a statement and present documentary evidence, and may request witnesses on his/her behalf; reasons for the denial of such a request are stated in writing" (emphasis added). ACA Standards for Adult Correctional Institutions, Standard 2-4363 Similarly, the National Conference of Commissioners on Uniform State Laws (NCUSL) has determined that whenever an inmate's request for a witness is denied, the hearing officer must make "a written factual finding that to [call the witness] would subject a person to a substantial risk of physical harm." NCUSL, Model Sentencing and Correction Act 4-507 (1979). A third study of this problem reached the same conclusion: "Reasons for disallowing prisoners' requests *521 for appearance of witnesses should be recorded for purposes of future review." ABA Standards for Criminal Justice 23-3.2, p. 23.41, n. 14 These authorities testify to the fact that, as penological experts have implemented Wolff over the last 11 years, significantly more has been learned about the sorts of due process protections at disciplinary hearings that are compatible with institutional needs. Recognizing that it was taking a tentative first step in this area, the Court in Wolff acknowledged that events in future years might "require further consideration and reflection of this Court." At the time of Wolff, the only option considered by both the majority and dissenting opinions was whether disciplinary boards ought to be required to "state" their reasons for refusing to hear requested witnesses, see ; ; this option seemingly implied disclosure to the inmate. But neither the Court nor the dissenting opinions considered the middle-ground alternative respondent proposes today: that a contemporaneous record be prepared and preserved in case of later legal challenge but not be available to the inmate. The failure to consider this alternative is not surprising, for at the time of Wolff the relevant question was simply whether inmates had any right at all to present witnesses; no federal court had yet considered whether reasons had to be given for denying this right, let alone whether such reasons could be recorded but preserved in a file to which the inmate would not have access.[20] Nor was the process of in camera review, upon which respondent's alternative depends, as common a solution to clashes between individual rights and government secrecy needs as it is today. Yet despite these developments, and despite Wolff's expectation that future developments would make clearer the proper balance between due process and institutional concerns, the *522 Court today inexplicably ignores the evolution of legal approaches and penological policy in this area.[21] VI The Court's decision leaves the inmate's constitutional right to present defense witnesses dangling in the wind. *523 Perhaps that is the virtue to the Court of its decision, for I certainly can discern no other basis, grounded in principle or sound reasoning, for it. Wolff may give prison officials a privilege to dispense with certain due process rights, but, as always, "[t]he scope of a privilege is limited by its underlying purpose." The underlying purposes of the privilege recognized in Wolff the promotion of "institutional safety and correctional goals" can be realized fully by contemporaneous explanations not disclosed to the inmate. For that reason, the privilege recognized in Wolff ought to evaporate in the face of this means of accommodating the inmate's due process rights. That is the conclusion of penological officials and experts throughout the country and my conclusion as well. The Court, however, concludes otherwise. I therefore dissent. |
Justice Ginsburg | dissenting | false | Cheney v. United States Dist. Court for DC | 2004-06-24T00:00:00 | null | https://www.courtlistener.com/opinion/136997/cheney-v-united-states-dist-court-for-dc/ | https://www.courtlistener.com/api/rest/v3/clusters/136997/ | 2,004 | 2003-082 | 1 | 7 | 2 | The Government, in seeking a writ of mandamus from the Court of Appeals for the District of Columbia, and on brief to this Court, urged that this case should be resolved without any discovery. See App. 183-184, 339; Brief for Petitioners 45; Reply Brief 18. In vacating the judgment of the Court of Appeals, however, this Court remands for consideration whether mandamus is appropriate due to the overbreadth of the District Court's discovery orders. See ante, at 372-373, 387-390. But, as the Court of Appeals observed, it appeared that the Government "never asked the district court to narrow discovery." In re Cheney, 334 F.3d 1096, 1106 (CADC 2003) (emphasis in original). Given the Government's decision to resist all discovery, mandamus relief based on the exorbitance of the discovery orders is at least "premature," id., at 1104. I would therefore affirm the judgment of the Court of Appeals denying the writ,[1] and allow the District Court, in the first instance, to pursue its expressed intention "tightly [to] rei[n] [in] discovery," 219 F. Supp. 2d 20, 54 (DC 2002), should the Government so request.
I
A
The discovery at issue here was sought in a civil action filed by respondents Judicial Watch, Inc., and Sierra Club. *397 To gain information concerning the membership and operations of an energy-policy task force, the National Energy Policy Development Group (NEPDG), respondents filed suit under the Federal Advisory Committee Act (FACA), 5 U.S. C. App. § 1 et seq., p. 1; respondents named among the defendants the Vice President and senior Executive Branch officials. See App. 16-40, 139-154; ante, at 373-374. After granting in part and denying in part the Government's motions to dismiss, see 219 F. Supp. 2d 20, the District Court approved respondents' extensive discovery plan, which included detailed and far-ranging interrogatories and sweeping requests for production of documents, see App. to Pet. for Cert. 51a; App. 215-230. In a later order, the District Court directed the Government to "produce non-privileged documents and a privilege log." App. to Pet. for Cert. 47a.
The discovery plan drawn by Judicial Watch and Sierra Club was indeed "unbounded in scope." Ante, at 388; accord 334 F.3d, at 1106. Initial approval of that plan by the District Court, however, was not given in stunning disregard of separation-of-powers concerns. Cf. ante, at 387-391. In the order itself, the District Court invited "detailed and precise object[ions]" to any of the discovery requests, and instructed the Government to "identify and explain ... invocations of privilege with particularity." App. to Pet. for Cert. 51a. To avoid duplication, the District Court provided that the Government could identify "documents or information [responsive to the discovery requests] that [it] ha[d] already released to [Judicial Watch or the Sierra Club] in different fora." Ibid.[2] Anticipating further proceedings concerning discovery, the District Court suggested that the Government could "submit [any privileged documents] under seal for the court's consideration," or that "the court [could] appoint the equivalent of a Special Master, maybe a retired judge," to review allegedly privileged documents. App. 247.
*398 The Government did not file specific objections; nor did it supply particulars to support assertions of privilege. Instead, the Government urged the District Court to rule that Judicial Watch and the Sierra Club could have no discovery at all. See id., at 192 ("the governmen[t] position is that ... no discovery is appropriate"); id., at 205 (same); 334 F.3d, at 1106 ("As far as we can tell, petitioners never asked the district court to narrow discovery to those matters [respondents] need to support their allegation that FACA applies to the NEPDG." (emphasis in original)). In the Government's view, "the resolution of the case ha[d] to flow from the administrative record" sans discovery. App. 192. Without taking up the District Court's suggestion of that court's readiness to rein in discovery, see 219 F. Supp. 2d, at 54, the Government, on behalf of the Vice President, moved, unsuccessfully, for a protective order and for certification of an interlocutory appeal pursuant to 28 U.S. C. § 1292(b). See 334 F.3d, at 1100; see App. to Pet. for Cert. 47a (District Court denial of protective order); 233 F. Supp. 2d 16 (DC 2002) (District Court denial of § 1292(b) certification).[3] At the District Court's hearing on the Government's motion for a stay pending interlocutory appeal, the Government argued that "the injury is submitting to discovery in the absence of a compelling showing of need by the [respondents]." App. 316; see 230 F. Supp. 2d 12 (DC 2002) (District Court order denying stay).
Despite the absence from this "flurry of activity," ante, at 379, of any Government motion contesting the terms of the discovery plan or proposing a scaled-down substitute plan, see 334 F.3d, at 1106, this Court states that the Government *399 "did in fact object to the scope of discovery and asked the District Court to narrow it in some way," ante, at 388. In support of this statement, the Court points to the Government's objections to the proposed discovery plan, its response to the interrogatories and production requests, and its contention that discovery would be unduly burdensome. See ante, at 388-389; App. 166-184, 201, 231-234, 274.
True, the Government disputed the definition of the term "meeting" in respondents' interrogatories, and stated, in passing, that "discovery should be [both] limited to written interrogatories" and "limited in scope to the issue of membership." Id., at 179, 181, 233.[4] But as the Court of Appeals noted, the Government mentioned "excessive discovery" in support of its plea to be shielded from any discovery. 334 F.3d, at 1106. The Government argument that "the burden of doing a document production is an unconstitutional burden," App. 274, was similarly anchored. The Government so urged at a District Court hearing in which its underlying "position [was] that it's not going to produce anything," id., at 249.[5]
*400 The Government's bottom line was firmly and consistently that "review, limited to the administrative record, should frame the resolution of this case." Id., at 181; accord id., at 179, 233. That administrative record would "consist of the Presidential Memorandum establishing NEPDG, NEPDG's public report, and the Office of the Vice President's response to ... Judicial Watch's request for permission to attend NEPDG meetings"; it would not include anything respondents could gain through discovery. Id., at 183. Indeed, the Government acknowledged before the District Court that its litigation strategy involved opposition to the discovery plan as a whole in lieu of focused objections. See id., at 205 (Government stated: "We did not choose to offer written objections to [the discovery plan]....").
Further sounding the Government's leitmotif, in a hearing on the proposed discovery plan, the District Court stated that the Government "didn't file objections" to rein in discovery "because [in the Government's view] no discovery is appropriate." Id., at 192; id., at 205 (same). Without endeavoring to correct any misunderstanding on the District Court's part, the Government underscored its resistance to any and all discovery. Id., at 192-194; id., at 201 (asserting that respondents are "not entitled to discovery to supplement [the administrative record]"). And in its motion for a protective order, the Government similarly declared its unqualified opposition to discovery. See Memorandum in Support of Defendants' Motion for a Protective Order and for Reconsideration, C. A. Nos. 01-1530 (EGS), 02-631 (EGS), p. 21 (D. D. C., Sept. 3, 2002) ("[Petitioners] respectfully request that the Court enter a protective order relieving them of any obligation to respond to [respondents'] discovery [requests]." (emphasis added)); see 334 F.3d, at 1106 (same).[6]
*401 The District Court, in short, "ignored" no concrete pleas to "narrow" discovery. But see ante, at 388-390. That court did, however, voice its concern about the Government's failure to heed the court's instructions:
"I told the government, if you have precise constitutional objections, let me know what they are so I can determine whether or not this [discovery] plan is appropriate, and ... you said, well, it's unconstitutional, without elaborating. You said, because Plaintiffs' proposed discovery plan has not been approved by the court, the Defendants are not submitting specific objections to Plaintiffs' proposed request.... My rule was, if you have objections, let me know what the objections are, and you chose not to do so." App. 205.
B
Denied § 1292(b) certification by the District Court, the Government sought a writ of mandamus from the Court of Appeals. See id., at 339-365. In its mandamus petition, the Government asked the appellate court to "vacate the discovery orders issued by the district court, direct the court to decide the case on the basis of the administrative record and such supplemental affidavits as it may require, and direct that the Vice President be dismissed as a defendant." Id., at 364-365. In support of those requests, the Government again argued that the case should be adjudicated without discovery: "The Constitution and principles of comity preclude discovery of the President or Vice President, especially without a demonstration of compelling and focused countervailing interest." Id., at 360.
The Court of Appeals acknowledged that the discovery plan presented by respondents and approved by the District *402 Court "goes well beyond what [respondents] need." 334 F.3d, at 1106. The appellate court nevertheless denied the mandamus petition, concluding that the Government's separation-of-powers concern "remain[ed] hypothetical." Id., at 1105. Far from ordering immediate "disclosure of communications between senior executive branch officials and those with information relevant to advice that was being formulated for the President," the Court of Appeals observed, the District Court had directed the Government initially to produce only "non-privileged documents and a privilege log." Id., at 1104 (citation and internal quotation marks omitted); see App. to Pet. for Cert. 47a.[7]
The Court of Appeals stressed that the District Court could accommodate separation-of-powers concerns short of denying all discovery or compelling the invocation of executive privilege. See 334 F.3d, at 1105-1106. Principally, the Court of Appeals stated, discovery could be narrowed, should the Government so move, to encompass only "whether non-federal officials participated [in NEPDG], and if so, to what extent." Id., at 1106. The Government could identify relevant materials produced in other litigation, thus avoiding undue reproduction. Id., at 1105; see App. to Pet. for Cert. 51a; supra, at 397. If, after appropriate narrowing, the discovery allowed still impels "the Vice President ... to claim privilege," the District Court could "entertain [those] privilege claims" and "review allegedly privileged documents in camera." 334 F.3d, at 1107. Mindful of "the judiciary's responsibility to police the separation of powers in litigation involving the executive," the Court of Appeals *403 expressed confidence that the District Court would "respond to petitioners' concern and narrow discovery to ensure that [respondents] obtain no more than they need to prove their case." Id., at 1106.
II
"This Court repeatedly has observed that the writ of mandamus is an extraordinary remedy, to be reserved for extraordinary situations." Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 289 (1988) (citing Kerr v. United States Dist. Court for Northern Dist. of Cal., 426 U.S. 394, 402 (1976)); see ante, at 380-381 (same). As the Court reiterates, "the party seeking issuance of the writ [must] have no other adequate means to attain the relief he desires." Kerr, 426 U.S., at 403 (citing Roche v. Evaporated Milk Assn., 319 U.S. 21, 26 (1943)); ante, at 380-381.
Throughout this litigation, the Government has declined to move for reduction of the District Court's discovery order to accommodate separation-of-powers concerns. See supra, at 398-402. The Court now remands this case so the Court of Appeals can consider whether a mandamus writ should issue ordering the District Court to "explore other avenues, short of forcing the Executive to invoke privilege," and, in particular, to "narrow, on its own, the scope of [discovery]." Ante, at 390. Nothing in the District Court's orders or the Court of Appeals' opinion, however, suggests that either of those courts would refuse reasonably to accommodate separation-of-powers concerns. See supra, at 397, 398, 401-402, and this page. When parties seeking a mandamus writ decline to avail themselves of opportunities to obtain relief from the District Court, a writ of mandamus ordering the same reliefi. e., here, reined-in discoveryis surely a doubtful proposition.
The District Court, moreover, did not err in failing to narrow discovery on its own initiative. Although the Court cites United States v. Poindexter, 727 F. Supp. 1501 (DC 1989), as "sound precedent" for district-court narrowing of *404 discovery, see ante, at 390, the target of the subpoena in that case, former President Reagan, unlike petitioners in this case, affirmatively requested such narrowing, 727 F. Supp., at 1503. A district court is not subject to criticism if it awaits a party's motion before tightening the scope of discovery; certainly, that court makes no "clear and indisputable" error in adhering to the principle of party initiation, Kerr, 426 U. S., at 403 (internal quotation marks omitted).[8]
*405 * * *
Review by mandamus at this stage of the proceedings would be at least comprehensible as a means to test the Government's position that no discovery is appropriate in this litigation. See Brief for Petitioners 45 ("[P]etitioners' separation-of-powers arguments are ... in the nature of a claim of immunity from discovery."). But in remanding for consideration of discovery-tailoring measures, the Court apparently rejects that no-discovery position. Otherwise, a remand based on the overbreadth of the discovery requests would make no sense. Nothing in the record, however, intimates lower court refusal to reduce discovery. Indeed, the appeals court has already suggested tailored discovery that would avoid "effectively prejudg[ing] the merits of respondents' claim," ante, at 393 (STEVENS, J., concurring). See 334 F.3d, at 1106 (respondents "need only documents referring to the involvement of non-federal officials"). See also ante, at 393, n. (STEVENS, J., concurring) ("A few interrogatories or depositions might have determined ... whether any non-Government employees voted on NEPDG recommendations or drafted portions of the committee's report"). In accord with the Court of Appeals, I am "confident that [were it moved to do so] the district court here [would] protect petitioners' legitimate interests and keep discovery within appropriate limits." 334 F.3d, at 1107.[9] I would therefore affirm the judgment of the Court of Appeals.
| The Government, in seeking a writ of mandamus from the Court of Appeals for the District of Columbia, and on brief to this Court, urged that this case should be resolved without any See App. 183-184, 339; Brief for Petitioners 45; Reply Brief 18. In vacating the judgment of the Court of Appeals, however, this Court remands for consideration whether mandamus is due to the overbreadth of the District Court's discovery orders. See ante, at 372-373, 387-390. But, as the Court of Appeals observed, it appeared that the Government "never asked the district court to narrow " In re Cheney, Given the Government's decision to resist all discovery, mandamus relief based on the exorbitance of the discovery orders is at least "premature," I would therefore affirm the judgment of the Court of Appeals denying the writ,[1] and allow the District Court, in the first instance, to pursue its expressed intention "tightly [to] rei[n] [in] discovery," should the Government so request. I A The discovery at issue here was sought in a civil action filed by respondents Judicial Watch, Inc., and Sierra Club. *397 To gain information concerning the membership and operations of an energy-policy task force, the National Energy Policy Development Group (NEPDG), respondents filed suit under the Federal Advisory Committee Act (FACA), 5 U.S. C. App. 1 et seq., p. 1; respondents named among the defendants the Vice President and senior Executive Branch officials. See App. 16-40, 139-1; ante, at 373-374. After granting in part and denying in part the Government's motions to dismiss, see the District Court approved respondents' extensive discovery plan, which included detailed and far-ranging interrogatories and sweeping requests for production of documents, see App. to Pet. for Cert. 51a; App. 215-230. In a later order, the District Court directed the Government to "produce non-privileged documents and a privilege log." App. to Pet. for Cert. 47a. The discovery plan drawn by Judicial Watch and Sierra Club was indeed "unbounded in scope." Ante, at 388; 334 F.3d, at Initial approval of that plan by the District Court, however, was not given in stunning disregard of separation-of-powers concerns. Cf. ante, at 387-391. In the order itself, the District Court invited "detailed and precise object[ions]" to any of the discovery requests, and instructed the Government to "identify and explain invocations of privilege with particularity." App. to Pet. for Cert. 51a. To avoid duplication, the District Court provided that the Government could identify "documents or information [responsive to the discovery requests] that [it] ha[d] already released to [Judicial Watch or the Sierra Club] in different fora." Ibid.[2] Anticipating further proceedings concerning discovery, the District Court suggested that the Government could "submit [any privileged documents] under seal for the court's consideration," or that "the court [could] appoint the equivalent of a Special Master, maybe a retired judge," to review allegedly privileged documents. App. 247. *398 The Government did not file specific objections; nor did it supply particulars to support assertions of privilege. Instead, the Government urged the District Court to rule that Judicial Watch and the Sierra Club could have no discovery at all. See ; ; 334 F.3d, at ("As far as we can tell, petitioners never asked the district court to narrow discovery to those matters [respondents] need to support their allegation that FACA applies to the NEPDG." ). In the Government's view, "the resolution of the case ha[d] to flow from the administrative record" sans App. 192. Without taking up the District Court's suggestion of that court's readiness to rein in discovery, see 219 F. Supp. 2d, at the Government, on behalf of the Vice President, moved, unsuccessfully, for a protective order and for certification of an interlocutory appeal pursuant to 28 U.S. C. 1292(b). See ; see App. to Pet. for Cert. 47a (District Court denial of protective order); (District Court denial of 1292(b) certification).[3] At the District Court's hearing on the Government's motion for a stay pending interlocutory appeal, the Government argued that "the injury is submitting to discovery in the absence of a compelling showing of need by the [respondents]." App. 316; see Despite the absence from this "flurry of activity," ante, at 379, of any Government motion contesting the terms of the discovery plan or proposing a scaled-down substitute plan, see 334 F.3d, at this Court states that the Government *399 "did in fact object to the scope of discovery and asked the District Court to narrow it in some way," ante, at 388. In support of this statement, the Court points to the Government's objections to the proposed discovery plan, its response to the interrogatories and production requests, and its contention that discovery would be unduly burdensome. See ante, at 388-389; App. 166-184, 201, 231-234, 274. True, the Government disputed the definition of the term "meeting" in respondents' interrogatories, and stated, in passing, that "discovery should be [both] limited to written interrogatories" and "limited in scope to the issue of membership."[4] But as the Court of Appeals noted, the Government mentioned "excessive discovery" in support of its plea to be shielded from any 334 F.3d, at The Government argument that "the burden of doing a document production is an unconstitutional burden," App. 274, was similarly anchored. The Government so urged at a District Court hearing in which its underlying "position [was] that it's not going to produce anything,"[5] *400 The Government's bottom line was firmly and consistently that "review, limited to the administrative record, should frame the resolution of this case." ; That administrative record would "consist of the Presidential Memorandum establishing NEPDG, NEPDG's public report, and the Office of the Vice President's response to Judicial Watch's request for permission to attend NEPDG meetings"; it would not include anything respondents could gain through Indeed, the Government acknowledged before the District Court that its litigation strategy involved opposition to the discovery plan as a whole in lieu of focused objections. See Further sounding the Government's leitmotif, in a hearing on the proposed discovery plan, the District Court stated that the Government "didn't file objections" to rein in discovery "because [in the Government's view] no discovery is" ; Without endeavoring to correct any misunderstanding on the District Court's part, the Government underscored its resistance to any and all -194; And in its motion for a protective order, the Government similarly declared its unqualified opposition to See Memorandum in Support of Defendants' Motion for a Protective Order and for Reconsideration, C. A. Nos. 01-1530 (EGS), 02-631 (EGS), p. 21 ("[Petitioners] respectfully request that the Court enter a protective order relieving them of any obligation to respond to [respondents'] discovery [requests]." (emphasis added)); see 334 F.3d, at[6] *401 The District Court, in short, "ignored" no concrete pleas to "narrow" But see ante, at 388-390. That court did, however, voice its concern about the Government's failure to heed the court's instructions: "I told the government, if you have precise constitutional objections, let me know what they are so I can determine whether or not this [discovery] plan is and you said, well, it's unconstitutional, without elaborating. You said, because Plaintiffs' proposed discovery plan has not been approved by the court, the Defendants are not submitting specific objections to Plaintiffs' proposed request. My rule was, if you have objections, let me know what the objections are, and you chose not to do so." App. 205. B Denied 1292(b) certification by the District Court, the Government sought a writ of mandamus from the Court of Appeals. See In its mandamus petition, the Government asked the appellate court to "vacate the discovery orders issued by the district court, direct the court to decide the case on the basis of the administrative record and such supplemental affidavits as it may require, and direct that the Vice President be dismissed as a defendant." In support of those requests, the Government again argued that the case should be adjudicated without discovery: "The Constitution and principles of comity preclude discovery of the President or Vice President, especially without a demonstration of compelling and focused countervailing interest." The Court of Appeals acknowledged that the discovery plan presented by respondents and approved by the District * Court "goes well beyond what [respondents] need." 334 F.3d, at The appellate court nevertheless denied the mandamus petition, concluding that the Government's separation-of-powers concern "remain[ed] hypothetical." Far from ordering immediate "disclosure of communications between senior executive branch officials and those with information relevant to advice that was being formulated for the President," the Court of Appeals observed, the District Court had directed the Government initially to produce only "non-privileged documents and a privilege log." ; see App. to Pet. for Cert. 47a.[7] The Court of Appeals stressed that the District Court could accommodate separation-of-powers concerns short of denying all discovery or compelling the invocation of executive privilege. See 334 F.3d, -. Principally, the Court of Appeals stated, discovery could be narrowed, should the Government so move, to encompass only "whether non-federal officials participated [in NEPDG], and if so, to what extent." at The Government could identify relevant materials produced in other litigation, thus avoiding undue reproduction. ; see App. to Pet. for Cert. 51a; If, after the discovery allowed still impels "the Vice President to claim privilege," the District Court could "entertain [those] privilege claims" and "review allegedly privileged documents in camera." Mindful of "the judiciary's responsibility to police the separation of powers in litigation involving the executive," the Court of Appeals *403 expressed confidence that the District Court would "respond to petitioners' concern and narrow discovery to ensure that [respondents] obtain no more than they need to prove their case." at II "This Court repeatedly has observed that the writ of mandamus is an extraordinary remedy, to be reserved for extraordinary situations." Gulfstream Aerospace ; see ante, at 380-381 As the Court reiterates, "the party seeking issuance of the writ [must] have no other adequate means to attain the relief he desires." ); ante, at 380-381. Throughout this litigation, the Government has declined to move for reduction of the District Court's discovery order to accommodate separation-of-powers concerns. See at 398-. The Court now remands this case so the Court of Appeals can consider whether a mandamus writ should issue ordering the District Court to "explore other avenues, short of forcing the Executive to invoke privilege," and, in particular, to "narrow, on its own, the scope of [discovery]." Ante, at 390. Nothing in the District Court's orders or the Court of Appeals' opinion, however, suggests that either of those courts would refuse reasonably to accommodate separation-of-powers concerns. See 398, 401-, and this page. When parties seeking a mandamus writ decline to avail themselves of opportunities to obtain relief from the District Court, a writ of mandamus ordering the same reliefi. e., here, reined-in discoveryis surely a doubtful proposition. The District Court, moreover, did not err in failing to narrow discovery on its own initiative. Although the Court cites United as "sound precedent" for district-court of *404 discovery, see ante, at 390, the target of the subpoena in that case, former President Reagan, unlike petitioners in this case, affirmatively requested such A district court is not subject to criticism if it awaits a party's motion before tightening the scope of discovery; certainly, that court makes no "clear and indisputable" error in adhering to the principle of party initiation, 4 U. S., at 403[8] *405 * * * Review by mandamus at this stage of the proceedings would be at least comprehensible as a means to test the Government's position that no discovery is in this litigation. See Brief for Petitioners 45 ("[P]etitioners' separation-of-powers arguments are in the nature of a claim of immunity from "). But in remanding for consideration of discovery-tailoring measures, the Court apparently rejects that no-discovery position. Otherwise, a remand based on the overbreadth of the discovery requests would make no sense. Nothing in the record, however, intimates lower court refusal to reduce Indeed, the appeals court has already suggested tailored discovery that would avoid "effectively prejudg[ing] the merits of respondents' claim," ante, at 393 (STEVENS, J., concurring). See 334 F.3d, at See also ante, at 393, n. (STEVENS, J., concurring) ("A few interrogatories or depositions might have determined whether any non-Government employees voted on NEPDG recommendations or drafted portions of the committee's report"). In with the Court of Appeals, I am "confident that [were it moved to do so] the district court here [would] protect petitioners' legitimate interests and keep discovery within limits."[9] I would therefore affirm the judgment of the Court of Appeals. |
per_curiam | per_curiam | true | Dillingham v. United States | 1975-12-01T00:00:00 | null | https://www.courtlistener.com/opinion/109331/dillingham-v-united-states/ | https://www.courtlistener.com/api/rest/v3/clusters/109331/ | 1,975 | 1975-011 | 2 | 7 | 1 | An interval of 22 months elapsed between petitioner's arrest and indictment, and a further period of 12 months between his indictment and trial, upon charges of automobile theft in violation of 18 U.S. C. §§ 371, 2312, and 2313. The District Court for the Northern District of Georgia denied petitioner's motionsmade immediately after arraignment and posttrialto dismiss the indictment on the ground that petitioner had been denied a speedy trial in violation of the Sixth Amendment. The Court of Appeals for the Fifth Circuit affirmed, holding that under United States v. Marion, 404 U.S. 307 (1971), the 22-month "pre-indictment delay . . . is not to be counted for the purposes of a Sixth Amendment motion absent a showing of actual prejudice." 502 F.2d 1233, 1235 (1974). This reading of Marion was incorrect. Marion presented the question whether in assessing a denial of speedy trial claim, there was to be counted a delay between the end of the criminal scheme charged and the indictment of a suspect not arrested or otherwise charged previous to the indictment. The Court held: "On its face, the protection of the [Sixth] Amendment is activated only when a criminal prosecution has begun and extends only to those persons *65 who have been `accused' in the course of that prosecution. These provisions would seem to afford no protection to those not yet accused, nor would they seem to require the Government to discover, investigate, and accuse any person within any particular period of time." 404 U.S., at 313. In contrast, the Government constituted petitioner an "accused" when it arrested him and thereby commenced its prosecution of him. Marion made this clear, id., at 320-321, where the Court stated:
"To legally arrest and detain, the Government must assert probable cause to believe the arrestee has committed a crime. Arrest is a public act that may seriously interfere with the defendant's liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends. These considerations were substantial underpinnings for the decision in Klopfer v. North Carolina, [386 U.S. 213 (1967)]; see also Smith v. Hooey, 393 U.S. 374, 377-378 (1969). So viewed, it is readily understandable that it is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment.
"Invocation of the speedy trial provision thus need not await indictment, information, or other formal charge."
See also Barker v. Wingo, 407 U.S. 514, 519-520, 532-533 (1972).[*]
*66 Petitioner's motion to proceed in forma pauperis and the petition for certiorari are granted. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
So ordered.
THE CHIEF JUSTICE dissents.
| An interval of 22 months elapsed between petitioner's arrest and indictment, and a further period of 12 months between his indictment and trial, upon charges of automobile theft in violation of 18 U.S. C. 371, 2312, and 2313. The District Court for the Northern District of Georgia denied petitioner's motionsmade immediately after arraignment and posttrialto dismiss the indictment on the ground that petitioner had been denied a speedy trial in violation of the Sixth Amendment. The Court of Appeals for the Fifth Circuit affirmed, holding that under United the 22-month "pre-indictment delay is not to be counted for the purposes of a Sixth Amendment motion absent a showing of actual prejudice." This reading of Marion was incorrect. Marion presented the question whether in assessing a denial of speedy trial claim, there was to be counted a delay between the end of the criminal scheme charged and the indictment of a suspect not arrested or otherwise charged previous to the indictment. The Court held: "On its face, the protection of the [Sixth] Amendment is activated only when a criminal prosecution has begun and extends only to those persons *65 who have been `accused' in the course of that prosecution. These provisions would seem to afford no protection to those not yet accused, nor would they seem to require the Government to discover, investigate, and accuse any person within any particular period of time." In contrast, the Government constituted petitioner an "accused" when it arrested him and thereby commenced its prosecution of him. Marion made this clear, where the Court stated: "To legally arrest and detain, the Government must assert probable cause to believe the arrestee has committed a crime. Arrest is a public act that may seriously interfere with the defendant's liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends. These considerations were substantial underpinnings for the decision in ]; see also So viewed, it is readily understandable that it is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment. "Invocation of the speedy trial provision thus need not await indictment, information, or other formal charge." See also[*] *66 Petitioner's motion to proceed in forma pauperis and the petition for certiorari are granted. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. So ordered. THE CHIEF JUSTICE dissents. |
Justice Souter | majority | false | Ortiz v. Fibreboard Corp. | 1999-06-23T00:00:00 | null | https://www.courtlistener.com/opinion/118319/ortiz-v-fibreboard-corp/ | https://www.courtlistener.com/api/rest/v3/clusters/118319/ | 1,999 | 1998-092 | 1 | 7 | 2 | This case turns on the conditions for certifying a mandatory settlement class on a limited fund theory under Federal Rule of Civil Procedure 23(b)(1)(B). We hold that applicants for contested certification on this rationale must show that the fund is limited by more than the agreement of the parties, and has been allocated to claimants belonging within the class by a process addressing any conflicting interests of class members.
I
Like Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997), this case is a class action prompted by the elephantine mass of asbestos cases, and our discussion in Amchem will suffice to show how this litigation defies customary judicial administration and calls for national legislation.[1] In 1967, one of the first actions for personal asbestos injury was filed in the United States District Court for the Eastern District *822 of Texas against a group of asbestos manufacturers. App. to Pet. for Cert. 252a. In the 1970's and 1980's, plaintiffs' lawyers throughout the country, particularly in East Texas, honed the litigation of asbestos claims to the point of almost mechanical regularity, improving the forensic identification of diseases caused by asbestos, refining theories of liability, and often settling large inventories of cases. See D. Hensler, W. Felstiner, M. Selvin, & P. Ebener, Asbestos in the Courts: The Challenge of Mass Toxic Torts vii (1985); McGovern, Resolving Mature Mass Tort Litigation, 69 B. U. L. Rev. 659, 660-661 (1989); see also App. to Pet. for Cert. 253a.
Respondent Fibreboard Corporation was a defendant in the 1967 action. Although it was primarily a timber company, from the 1920's through 1971 the company manufactured a variety of products containing asbestos, mainly for high-temperature industrial applications. As the tide of asbestos litigation rose, Fibreboard found itself litigating on two fronts. On one, plaintiffs were filing a stream of personal injury claims against it, swelling throughout the 1980's and 1990's to thousands of new claims for compensatory damages each year. Id., at 265a; App. 1040a. On the second front, Fibreboard was battling for funds to pay its tort claimants. From May 1957 through March 1959, respondent Continental Casualty Company had provided Fibreboard with a comprehensive general liability policy with limits of $1 million per occurrence, $500,000 per claim, and no aggregate limit. Fibreboard also claimed that respondent Pacific Indemnity Company had insured it from 1956 to 1957 under a similar policy. App. to Pet. for Cert. 267a-268a. Beginning in 1979, Fibreboard was locked in coverage litigation with Continental and Pacific in a California state trial court, which in 1990 held Continental and Pacific responsible for indemnification as to any claim by a claimant exposed to Fibreboard asbestos products prior to their policies' respective *823 expiration dates. Id., at 268a-269a. The decree also required the insurers to pay the full cost of defense for each claim covered. Ibid. The insurance companies appealed.
With asbestos case filings continuing unabated, and its secure insurance assets almost depleted, Fibreboard in 1988 began a practice of "structured settlement," paying plaintiffs 40 percent of the settlement figure up front with the balance contingent upon a successful resolution of the coverage dispute.[2] By 1991, however, the pace of filings forced Fibreboard to start settling cases entirely with the assignments of its rights against Continental, with no initial payment. To reflect the risk that Continental might prevail in the coverage dispute, these assignment agreements generally carried a figure about twice the nominal amount of earlier settlements. Continental challenged Fibreboard's right to make unilateral assignments, but in 1992 a California state court ruled for Fibreboard in that dispute.[3]
Meanwhile, in the aftermath of a 1990 Federal Judicial Center conference on the asbestos litigation crisis, Fibreboard approached a group of leading asbestos plaintiffs' lawyers, offering to discuss a "global settlement" of its asbestos *824 personal-injury liability. Early negotiations bore relatively little fruit, save for the December 1992 settlement by assignment of a significant inventory of pending claims. This settlement brought Fibreboard's deferred settlement obligations to more than $1.2 billion, all contingent upon victory over Continental on the scope of coverage and the validity of the settlement assignments.
In February 1993, after Continental had lost on both issues at the trial level, and thus faced the possibility of practically unbounded liability, it too joined the global settlement negotiations. Because Continental conditioned its part in any settlement on a guarantee of "total peace," ensuring no unknown future liabilities, talks focused on the feasibility of a mandatory class action, one binding all potential plaintiffs and giving none of them any choice to opt out of the certified class. Negotiations continued throughout the spring and summer of 1993, but the difficulty of settling both actually pending and potential future claims simultaneously led to an agreement in early August to segregate and settle an inventory of some 45,000 pending claims, being substantially all those filed by one of the plaintiffs' firms negotiating the global settlement. The settlement amounts per claim were higher than average, with one-half due on closing and the remainder contingent upon either a global settlement or Fibreboard's success in the coverage litigation. This agreement provided the model for settling inventory claims of other firms.
With the insurance companies' appeal of the consolidated coverage case set to be heard on August 27, the negotiating parties faced a motivating deadline, and about midnight before the argument, in a coffee shop in Tyler, Texas, the negotiators finally agreed upon $1.535 billion as the key term of a "Global Settlement Agreement." $1.525 billion of this sum would come from Continental and Pacific, in the proportion established by the California trial court in the coverage case, *825 while Fibreboard would contribute $10 million, all but $500,000 of it from other insurance proceeds, App. 84a. The negotiators also agreed to identify unsettled present claims against Fibreboard and set aside an as-then unspecified fund to resolve them, anticipating that the bulk of any excess left in that fund would be transferred to class claimants. Ahearn v. Fibreboard Corp., 162 F. R. D. 505, 517 (ED Tex. 1995). The next day, as a hedge against the possibility that the Global Settlement Agreement might fail, plaintiffs' counsel insisted as a condition of that agreement that Fibreboard and its two insurers settle the coverage dispute by what came to be known as the "Trilateral Settlement Agreement." The two insurers agreed to provide Fibreboard with funds eventually set at $2 billion to defend against asbestos claimants and pay the winners, should the Global Settlement Agreement fail to win approval. Id., at 517, 521; see also App. to Pet. for Cert. 492a.[4]
On September 9, 1993, as agreed, a group of named plaintiffs filed an action in the United States District Court for the Eastern District of Texas, seeking certification for settlement purposes of a mandatory class comprising three groups: all persons with personal injury claims against Fibreboard for asbestos exposure who had not yet brought suit or settled their claims before the previous August 27; those who had dismissed such a claim but retained the right to bring a future action against Fibreboard; and "past, present and future spouses, parents, children, and other relatives" of class members *826 exposed to Fibreboard asbestos.[5] The class did not include claimants with actions presently pending against Fibreboard or claimants "who filed and, for cash payment or some other negotiated value, dismissed claims against Fibreboard, and whose only retained right is to sue Fibreboard upon development of an asbestos-related malignancy." Id., *827 at 534a-535a. The complaint pleaded personal injury claims against Fibreboard, and, as justification for class certification, relied on the shared necessity of ensuring insurance funds sufficient for compensation. Id., at 552a-569a. After Continental and Pacific had obtained leave to intervene as party-defendants, the District Court provisionally granted class certification, enjoined commencement of further separate litigation against Fibreboard by class members, and appointed a guardian ad litem to review the fairness of the settlement to the class members. See In re Asbestos Litigation, 90 F.3d 963, 972 (CA5 1996).
As finally negotiated, the Global Settlement Agreement provided that in exchange for full releases from class members, Fibreboard, Continental, and Pacific would establish a trust to process and pay class members' asbestos personal injury and death claims. Claimants seeking compensation would be required to try to settle with the trust. If initial settlement attempts failed, claimants would have to proceed to mediation, arbitration, and a mandatory settlement conference. Only after exhausting that process could claimants go to court against the trust, subject to a limit of $500,000 per claim, with punitive damages and prejudgment interest barred. Claims resolved without litigation would be discharged over three years, while judgments would be paid out over a 5- to 10-year period. The Global Settlement Agreement also contained spendthrift provisions to conserve the trust, and provided for paying more serious claims first in the event of a shortfall in any given year. Id., at 973.
After an extensive campaign to give notice of the pending settlement to potential class members, the District Court allowed groups of objectors, including petitioners here, to intervene. After an 8-day fairness hearing, the District Court certified the class and approved the settlement as "fair, adequate, and reasonable" under Rule 23(e). Ahearn, 162 F. R. D., at 527. Satisfied that the requirements of Rule *828 23(a) were met, id., at 523-526,[6] the District Court certified the class under Rule 23(b)(1)(B),[7] citing the risk that Fibreboard might lose or fare poorly on appeal of the coverage case or lose the assignment-settlement dispute, leaving it without funds to pay all claims. Id., at 526. The "allowance of individual adjudications by class members," the District Court concluded, "would have destroyed the opportunity to compromise the insurance coverage dispute by creating the settlement fund, and would have exposed the class members to the very risks that the settlement addresses." Id., at 527. In response to intervenors' objections that the absence of a "limited fund" precluded certification under Rule 23(b)(1)(B), the District Court ruled that although the subdivision is not so restricted, if it were, this case would qualify. It found both the "disputed insurance asset liquidated by the $1.535 billion Global Settlement," and, alternatively, "the sum of the value of Fibreboard plus the value of its insurance coverage," as measured by the insurance funds' settlement value, to be relevant "limited funds." App. to Pet. for Cert. 491a-492a.
On appeal, the Fifth Circuit affirmed both as to class certification and adequacy of settlement. In re Asbestos Litiga- *829 tion, supra.[8] Agreeing with the District Court's application of Rule 23(a), the Court of Appeals found that there was commonality in class members' shared interest in securing and equitably distributing maximum possible settlement funds, and that the representative plaintiffs were sufficiently typical both in sharing that interest and in basing their claims on the same legal and remedial theories that absent class members might raise. Id., at 975-976. The Fifth Circuit also thought that there were no conflicts of interest sufficiently serious to undermine the adequacy of class counsel's representation. Id., at 976-982.[9] As to Rule 23(b)(1)(B), the court approved the class certification on a "limited fund" rationale based on the threat to "the ability of other members of the class to receive full payment for their injuries from Fibreboard's limited assets." Id., at 982.[10] The Court of Appeals cited expert testimony that Fibreboard faced enormous potential liabilities and defense costs that would likely equal or exceed the amount of damages paid out, and concluded that even combining Fibreboard's value of some $235 million with the $2 billion provided in the Trilateral Settlement Agreement, the company would be unable to pay all valid claims against it within five to nine years. Ibid. Judge Smith dissented, arguing among other things that the *830 majority had skimped on serious due process concerns, had glossed over problems of commonality, typicality, and adequacy of representation, and had ignored a number of justiciability issues. See generally id., at 993-1026.[11]
Shortly thereafter, this Court decided Amchem and proceeded to vacate the Fifth Circuit's judgment and remand for further consideration in light of that decision. 521 U.S. 1114 (1997). On remand, the Fifth Circuit again affirmed, in a brief per curiam opinion, distinguishing Amchem on the grounds that the instant action proceeded under Rule 23(b)(1)(B) rather than (b)(3), and did not allocate awards according to the nature of the claimant's injury. In re Asbestos Litigation, 134 F.3d 668, 669-670 (1998). Again citing the findings on certification under Rule 23(b)(1)(B), the Fifth Circuit affirmed as "incontestable" the District Court's conclusion that the terms of the subdivision had been met. Id., at 670. The Court of Appeals acknowledged Amchem `s admonition that settlement class actions may not proceed unless the requirements of Rule 23(a) are met, but noted that the District Court had made extensive findings supporting its Rule 23(a) determinations. Ibid. Judge Smith again dissented, reiterating his previous concerns, and argued specifically that the District Court erred in certifying the class under Rule 23(b)(1)(B) on a "limited fund" theory because the only limited fund in the case was a creature of the settlement itself. Id., at 671-674.
We granted certiorari, 524 U.S. 936 (1998), and now reverse.
II
The nub of this case is the certification of the class under Rule 23(b)(1)(B) on a limited fund rationale, but before we reach that issue, there are two threshold matters. First, *831 petitioners call the class claims nonjusticiable under Article III, saying that this is a feigned action initiated by Fibreboard to control its future asbestos tort liability, with the "vast majority" of the "exposure-only" class members being without injury in fact and hence without standing to sue. Brief for Petitioners 44-50. Ordinarily, of course, this or any other Article III court must be sure of its own jurisdiction before getting to the merits. Steel Co. v. Citizens For Better Environment, 523 U.S. 83, 88-89 (1998). But the class certification issues are, as they were in Amchem, "logically antecedent" to Article III concerns, 521 U.S., at 612, and themselves pertain to statutory standing, which may properly be treated before Article III standing, see Steel Co., supra, at 92. Thus the issue about Rule 23 certification should be treated first, "mindful that [the Rule's] requirements must be interpreted in keeping with Article III constraints . . . ." Amchem, supra, at 612-613.
Petitioners also argue that the Fifth Circuit on remand disregarded Amchem in passing on the Rule 23(a) issues of commonality, typicality, and adequacy of representation. Brief for Petitioners 13-22. We agree that in reinstating its affirmance of the District Court's certification decision, the Fifth Circuit fell short in its attention to Amchem's explanation of the governing legal standards. Two aspects in particular of the District Court's certification should have received more detailed treatment by the Court of Appeals. First, the District Court's enquiry into both commonality and typicality focused almost entirely on the terms of the settlement. See Ahearn, 162 F. R. D., at 524.[12] Second, and more significantly, the District Court took no steps at the outset to ensure that the potentially conflicting interests of *832 easily identifiable categories of claimants be protected by provisional certification of subclasses under Rule 23(c)(4), relying instead on its post hoc findings at the fairness hearing that these subclasses in fact had been adequately represented. As will be seen, however, these points will reappear when we review the certification on the Court of Appeals's "limited fund" theory under Rule 23(b)(1)(B). We accordingly turn directly to that.
III
A
Although representative suits have been recognized in various forms since the earliest days of English law, see generally S. Yeazell, From Medieval Group Litigation to the Modern Class Action (1987); see also Marcin, Searching for the Origin of the Class Action, 23 Cath. U. L. Rev. 515, 517524 (1973), class actions as we recognize them today developed as an exception to the formal rigidity of the necessary parties rule in equity, see Hazard, Gedid, & Sowle, An Historical Analysis of the Binding Effect of Class Suits, 146 U. Pa. L. Rev. 1849, 1859-1860 (1998) (hereinafter Hazard, Gedid, & Sowle), as well as from the bill of peace, an equitable device for combining multiple suits, see Z. Chafee, Some Problems of Equity 161-167, 200-203 (1950). The necessary parties rule in equity mandated that "all persons materially interested, either as plaintiffs or defendants in the subject matter of the bill ought to be made parties to the suit, however numerous they may be." West v. Randall, 29 F. Cas. 718, 721 (No. 17,424) (CC RI) (1820) (Story, J.). But because that rule would at times unfairly deny recovery to the party before the court, equity developed exceptions, among them one to cover situations "where the parties are very numerous, and the court perceives, that it will be almost impossible to bring them all before the court; or where the question is of general interest, and a few may sue for the benefit of the whole; or where the parties form a part of a voluntary association *833 for public or private purposes, and may be fairly supposed to represent the rights and interests of the whole . . . ." Id., at 722; see J. Story, Commentaries on Equity Pleadings 97 (J. Gould 10th rev. ed. 1892); F. Calvert, A Treatise upon the Law Respecting Parties to Suits in Equity 17-29 (1837) (hereinafter Calvert, Parties to Suits in Equity). From these roots, modern class action practice emerged in the 1966 revision of Rule 23. In drafting Rule 23(b), the Advisory Committee sought to catalogue in "functional" terms "those recurrent life patterns which call for mass litigation through representative parties." Kaplan, A Prefatory Note, 10 Barb. C. Ind. & Com. L. Rev. 497 (1969).
Rule 23(b)(1)(B) speaks from "a vantage point within the class, [from which the Advisory Committee] spied out situations where lawsuits conducted with individual members of the class would have the practical if not technical effect of concluding the interests of the other members as well, or of impairing the ability of the others to protect their own interests." Kaplan, Continuing Work of the Civil Committee: 1966 Amendments of the Federal Rules of Civil Procedure (I), 81 Harv. L. Rev. 356, 388 (1967) (hereinafter Kaplan, Continuing Work). Thus, the subdivision (read with subdivision (c)(2)) provides for certification of a class whose members have no right to withdraw, when "the prosecution of separate actions . . . would create a risk" of "adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests." Fed. Rule Civ. Proc. 23(b)(1)(B).[13] Classic examples *834 of such a risk of impairment may, for example, be found in suits brought to reorganize fraternal-benefit societies, see, e. g., Supreme Tribe of Ben-Hur v. Cauble, 255 U.S. 356 (1921); actions by shareholders to declare a dividend or otherwise to "fix [their] rights," Kaplan, Continuing Work 388; and actions charging "a breach of trust by an indenture trustee or other fiduciary similarly affecting the members of a large class" of beneficiaries, requiring an accounting or similar procedure "to restore the subject of the trust," Advisory Committee's Notes on Fed. Rule Civ. Proc. 23, 28 U.S. C. App., p. 696 (hereinafter Adv. Comm. Notes). In each of these categories, the shared character of rights claimed or relief awarded entails that any individual adjudication by a class member disposes of, or substantially affects, the interests of absent class members.
Among the traditional varieties of representative suit encompassed by Rule 23(b)(1)(B) were those involving "the presence of property which call[ed] for distribution or management," J. Moore & J. Friedman, 2 Federal Practice 2240 (1938) (hereinafter Moore & Friedman). One recurring type of such suits was the limited fund class action, aggregating "claims . . . made by numerous persons against a fund insufficient to satisfy all claims." Adv. Comm. Notes 697; cf. 1 Newberg 4.09, at 4-33 ("Classic" limited fund class actions "include claimants to trust assets, a bank account, insurance proceeds, company assets in a liquidation sale, proceeds of a ship sale in a maritime accident suit, and others").[14] The Advisory Committee cited Dickinson v. *835 Burnham, 197 F.2d 973 (CA2), cert. denied, 344 U.S. 875 (1952), as illustrative of this tradition. In Dickinson, investors hoping to save a failing company had contributed some $600,000, which had been misused until nothing was left but a pool of secret profits on a fraction of the original investment. In a class action, the District Court took charge of this fund, subjecting it to a constructive trust for division among subscribers who demonstrated their claims, in amounts proportional to each class member's percentage of all substantiated claims. 197 F.2d, at 978.[15] The Second Circuit approved the class action and the distribution of the entire pool to claimants, noting that "[a]lthough none of the contributors has been paid in full, no one . . . now asserts or suggests that they should have full recovery . . . as on an ordinary tort liability for conspiracy and defrauding. The court's power of disposition over the fund was therefore absolute *836 and final." Id., at 980.[16] As the Advisory Committee recognized in describing Dickinson, equity required absent parties to be represented, joinder being impractical, where individual claims to be satisfied from the one asset would, as a practical matter, prejudice the rights of absent claimants against a fund inadequate to pay them all.
Equity, of course, recognized the same necessity to bind absent claimants to a limited fund when no formal imposition of a constructive trust was entailed. In Guffanti v. National Surety Co., 196 N.Y. 452, 458, 90 N.E. 174, 176 (1909), for example, the defendant received money to supply steamship tickets and had posted a $15,000 bond as required by state law. He converted to personal use funds collected from more than 150 ticket purchasers, was then adjudged bankrupt, and absconded. One of the defrauded ticket purchasers sued the surety in equity on behalf of himself and all others like him. Over the defendant's objection, the New York Court of Appeals sustained the equitable class suit, citing among other considerations the fact that all recovery had to come from a "limited fund out of which the aggregate recoveries must be sought" that was inadequate to pay all claims, and subject to pro rata distribution. Id., at 458, 90 N.E., at 176. See Hazard, Gedid, & Sowle 1915 ("[Guffanti] *837 explained that when a debtor's assets were less than the total of the creditors' claims, a binding class action was not only permitted but was required; otherwise some creditors (the parties) would be paid and others (the absentees) would not"). See also Morrison v. Warren 174 Misc. 233, 234, 20 N. Y. S. 2d 26, 27 (Sup. Ct. N. Y. Cty. 1940) (suit on behalf of more than 400 beneficiaries of an insurance policy following a fire appropriate where "the amount of the claims . . . greatly exceeds the amount of the insurance"); National Surety Co. v. Graves, 211 Ala. 533, 534, 101 So. 190 (1924) (suit against a surety company by stockholders "for the benefit of themselves and all others similarly situate who will join the suit" where it was alleged that individual suits were being filed on surety bonds that "would result in the exhaustion of the penalties of the bonds, leaving many stockholders without remedy").
Ross v. Crary, 1 Paige Ch. 416, 417-418 (N. Y. Ch. 1829), presents the concept of the limited fund class action in another incarnation. "[D]ivers suits for general legacies," id., at 417, were brought by various legatees against the executor of a decedent's estate. The Ross court stated that where "there is an allegation of a deficiency of the fund, so that an account of the estate is necessary," the court will "direc[t] an account in one cause only" and "stay the proceeding[s] in the others, leaving all the parties interested in the fund, to come in under the decree." Id., at 417-418. Thus, in equity, legatee and creditor bills against the assets of a decedent's estate had to be brought on behalf of all similarly situated claimants where it was clear from the pleadings that the available portion of the estate could not satisfy the aggregate claims against it.[17]
*838 B
The cases forming this pedigree of the limited fund class action as understood by the drafters of Rule 23 have a number of common characteristics, despite the variety of circumstances from which they arose. The points of resemblance are not necessarily the points of contention resolved in the particular cases, but they show what the Advisory Committee must have assumed would be at least a sufficient set of conditions to justify binding absent members of a class under Rule 23(b)(1)(B), from which no one has the right to secede.
The first and most distinctive characteristic is that the totals of the aggregated liquidated claims and the fund available for satisfying them, set definitely at their maximums, demonstrate the inadequacy of the fund to pay all the claims. The concept driving this type of suit was insufficiency, which alone justified the limit on an early feast to avoid a later famine. See, e. g., Guffanti, supra, at 457, 90 N.E., at 176 ("The total amount of the claims exceeds the penalty of the bond . . . . A just and equitable payment from the bond would be a distribution pro rata upon the amount of the several embezzlements. Unless in a case like this the amount *839 of the bond is so distributed among the persons having claims which are secured thereby, it must necessarily result in a scramble for precedence in payment, and the amount of the bond may be paid to the favored, or to those first obtaining knowledge of the embezzlements"); Graves, supra, at 534, 101 So., at 190 ("The primary equity of the bill is the adjustment of claims and the equitable apportionment of a fund provided by law, which is insufficient to pay claimants in full"). The equity of the limitation is its necessity.
Second, the whole of the inadequate fund was to be devoted to the overwhelming claims. See, e. g., Dickinson, 197 F. 2d, at 979-980 (rejecting a challenge by holder of funds to the court's disposition of the entire fund); see also United States v. Butterworth-Judson Corp., 269 U.S. 504, 513 (1926) ("Here, the fund being less than the debts, the creditors are entitled to have all of it distributed among them according to their rights and priorities"). It went without saying that the defendant or estate or constructive trustee with the inadequate assets had no opportunity to benefit himself or claimants of lower priority by holding back on the amount distributed to the class. The limited fund cases thus ensured that the class as a whole was given the best deal; they did not give a defendant a better deal than seriatim litigation would have produced.
Third, the claimants identified by a common theory of recovery were treated equitably among themselves. The cases assume that the class will comprise everyone who might state a claim on a single or repeated set of facts, invoking a common theory of recovery, to be satisfied from the limited fund as the source of payment. Each of the people represented in Ross, for example, had comparable entitlement as a legatee under the testator's will. Those subject to representation in Dickinson had a common source of claims in the solicitation of funds by parties whose subsequent defalcation left them without their investment, while in Guffanti the individuals represented had each entrusted *840 money for ticket purchases. In these cases the hope of recovery was limited, respectively, by estate assets, the residuum of profits, and the amount of the bond. Once the represented classes were so identified, there was no question of omitting anyone whose claim shared the common theory of liability and would contribute to the calculated shortfall of recovery. See Railroad Co. v. Orr, 18 Wall. 471, 474 (1873) (reciting the "well settled" general rule "that when it appears on the face of the bill that there will be a deficiency in the fund, and that there are other creditors or legatees who are entitled to a ratable distribution with the complainants, and who have a common interest with them, such creditors or legatees should be made parties to the bill, or the suit should be brought by the complainants in behalf of themselves and all others standing in a similar situation"). The plaintiff appeared on behalf of all similarly situated parties, see Calvert, Parties to Suits in Equity 24 ("[I]t is not sufficient that the plaintiff appear on behalf of numerous parties: the rule seems to be, that he must appear on behalf of all who are interested"); thus, the creditors' bill was brought on behalf of all creditors, cf. Leigh v. Thomas, 2 Ves. Sen. 312, 313, 28 Eng. Rep. 201 (Ch. 1751) ("No doubt but a bill may be by a few creditors in behalf of themselves and the rest. . . but there is no instance of a bill by three or four to have an account of the estate, without saying they bring it in behalf of themselves and the rest of the creditors"), the constructive trust was asserted on behalf of all victims of the fraud, and the surety suit was brought on behalf of all entitled to a share of the bond.[18] Once all similar claims *841 were brought directly or by representation before the court, these antecedents of the mandatory class action presented straightforward models of equitable treatment, with the simple equity of a pro rata distribution providing the required fairness, see 1 J. Pomeroy, Equity Jurisprudence 407, pp. 764-765 (4th ed. 1918) ("[I]f the fund is not sufficient to discharge all claims upon it in full . . . equity will incline to regard all the demands as standing upon an equal footing, and will decree a pro rata distribution or payment").[19]
In sum, mandatory class treatment through representative actions on a limited fund theory was justified with reference to a "fund" with a definitely ascertained limit, all of which would be distributed to satisfy all those with liquidated claims based on a common theory of liability, by an equitable, pro rata distribution.
C
The Advisory Committee, and presumably the Congress in approving subdivision (b)(1)(B), must have assumed that an action with these characteristics would satisfy the limited *842 fund rationale cognizable under that subdivision. The question remains how far the same characteristics are necessary for limited fund treatment. While we cannot settle all the details of a subdivision (b)(1)(B) limited fund here (and so cannot decide the ultimate question whether settlements of multitudes of related tort actions are amenable to mandatory class treatment), there are good reasons to treat these characteristics as presumptively necessary, and not merely sufficient, to satisfy the limited fund rationale for a mandatory action. At the least, the burden of justification rests on the proponent of any departure from the traditional norm.
It is true, of course, that the text of Rule 23(b)(1)(B) is on its face open to a more lenient limited fund concept, just as it covers more historical antecedents than the limited fund. But the greater the leniency in departing from the historical limited fund model, the greater the likelihood of abuse in ways that will be apparent when we apply the limited fund criteria to the case before us. The prudent course, therefore, is to presume that when subdivision (b)(1)(B) was devised to cover limited fund actions, the object was to stay close to the historical model. As will be seen, this limiting construction finds support in the Advisory Committee's expressions of understanding, minimizes potential conflict with the Rules Enabling Act, and avoids serious constitutional concerns raised by the mandatory class resolution of individual legal claims, especially where a case seeks to resolve future liability in a settlement-only action.
To begin with, the Advisory Committee looked cautiously at the potential for creativity under Rule 23(b)(1)(B), at least in comparison with Rule 23(b)(3). Although the Committee crafted all three subdivisions of the Rule in general, practical terms, without the formalism that had bedeviled the original Rule 23, see Kaplan, Continuing Work 380-386, the Committee was consciously retrospective with intent to codify preRule categories under Rule 23(b)(1), not forward looking as it was in anticipating innovations under Rule 23(b)(3). Compare *843 Civil Rules Advisory Committee Meeting, Oct. 31-Nov. 2, 1963, Congressional Information Service Records of the U. S. Judicial Conference, Committee on Rules of Practice and Procedure 1935-1988, No. CI-7104-53, p. 11 (hereinafter Civil Rules Meeting) (comments of Reporter Kaplan) (Rule 23(b)(3) represents "the growing point of the law"); id., at 16 (comments of Committee Member Prof. Albert M. Sacks) (Rule 23(b)(3) is "an evolving area"). Thus, the Committee intended subdivision (b)(1) to capture the "`standard' " class actions recognized in pre-Rule practice, Kaplan, Continuing Work 394.
Consistent with its backward look under subdivision (b)(1), as commentators have pointed out, it is clear that the Advisory Committee did not contemplate that the mandatory class action codified in subdivision (b)(1)(B) would be used to aggregate unliquidated tort claims on a limited fund rationale. See Monaghan, Antisuit Injunctions and Preclusion Against Absent Nonresident Class Members, 98 Colum. L. Rev. 1148, 1164 (1998) ("The `framers' of Rule 23 did not envision the expansive interpretations of the rule that have emerged . . . . No draftsmen contemplated that, in mass torts, (b)(1)(B) `limited fund' classes would emerge as the functional equivalent to bankruptcy by embracing `funds' created by the litigation itself"); see also Schwarzer, Settlement of Mass Tort Class Actions: Order Out of Chaos, 80 Cornell L. Rev. 837, 840 (1995) ("The original concept of the limited fund class does not readily fit the situation where a large volume of claims might eventually result in judgments that in the aggregate could exceed the assets available to satisfy them"); Marcus, They Can't Do That, Can They? Tort Reform Via Rule 23, 80 Cornell L. Rev. 858, 877 (1995). None of the examples cited in the Advisory Committee Notes or by Professor Kaplan in explaining Rule 23(b)(1)(B) remotely approach what was then described as a "mass accident" case. While the Advisory Committee focused much attention on the amenability of Rule 23(b)(3) to such cases, *844 the Committee's debates are silent about resolving tort claims under a mandatory limited fund rationale under Rule 23(b)(1)(B).[20] It is simply implausible that the Advisory Committee, so concerned about the potential difficulties posed by dealing with mass tort cases under Rule 23(b)(3), with its provisions for notice and the right to opt out, see Rule 23(c)(2), would have uncritically assumed that mandatory versions of such class actions, lacking such protections, could be certified under Rule 23(b)(1)(B).[21] We do not, it is true, decide the ultimate question whether Rule 23(b)(1)(B) may ever be used to aggregate individual tort claims, cf. Ticor Title Ins. Co. v. Brown, 511 U.S. 117, 121 (1994) *845 (per curiam). But we do recognize that the Committee would have thought such an application of the Rule surprising, and take this as a good reason to limit any surprise by presuming that the Rule's historical antecedents identify requirements.
The Rules Enabling Act underscores the need for caution. As we said in Amchem, no reading of the Rule can ignore the Act's mandate that "rules of procedure `shall not abridge, enlarge or modify any substantive right,'" Amchem, 521 U. S., at 613 (quoting 28 U.S. C. 2072(b)); cf. Guaranty Trust Co. v. York, 326 U.S. 99, 105 (1945) ("In giving federal courts `cognizance' of equity suits in cases of diversity jurisdiction, Congress never gave, nor did the federal courts ever claim, the power to deny substantive rights created by State law or to create substantive rights denied by State law"). Petitioners argue that the Act has been violated here, asserting that the Global Settlement Agreement's priorities of claims and compromise of full recovery abrogated the state law that must govern this diversity action under 28 U.S. C. 1652. See Brief for Petitioners 31-36. Although we need not grapple with the difficult choice-of-law and substantive state-law questions raised by petitioners' assertion, we do need to recognize the tension between the limited fund class action's pro rata distribution in equity and the rights of individual tort victims at law. Even if we assume that some such tension is acceptable under the Rules Enabling Act, it is best kept within tolerable limits by keeping limited fund practice under Rule 23(b)(1)(B) close to the practice preceding its adoption.
Finally, if we needed further counsel against adventurous application of Rule 23(b)(1)(B), the Rules Enabling Act and the general doctrine of constitutional avoidance would jointly sound a warning of the serious constitutional concerns that come with any attempt to aggregate individual tort claims on a limited fund rationale. First, the certification of a mandatory class followed by settlement of its action for money *846 damages obviously implicates the Seventh Amendment jury trial rights of absent class members.[22] We noted in Ross v. Bernhard, 396 U.S. 531 (1970), that since the merger of law and equity in 1938, it has become settled among the lower courts that "class action plaintiffs may obtain a jury trial on any legal issues they present." Id., at 541. By its nature, however, a mandatory settlement-only class action with legal issues and future claimants compromises their Seventh Amendment rights without their consent.
Second, and no less important, mandatory class actions aggregating damages claims implicate the due process "principle of general application in Anglo-American jurisprudence that one is not bound by a judgment in personam in a litigation in which he is not designated as a party or to which he has not been made a party by service of process," Hansberry v. Lee, 311 U.S. 32, 40 (1940), it being "our `deep-rooted historic tradition that everyone should have his own day in court,' " Martin v. Wilks, 490 U.S. 755, 762 (1989) (quoting 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure 4449, p. 417 (1981)); see Richards v. Jefferson County, 517 U.S. 793, 798-799 (1996). Although "`[w]e have recognized an exception to the general rule when, in certain limited circumstances, a person, although not a party, has his interests adequately represented by someone with the same interests who is a party," or "where a special remedial scheme exists expressly foreclosing successive litigation by nonlitigants, as for example in bankruptcy or probate," Martin, supra, at 762, n. 2 (citations omitted), the burden of justification rests on the exception.
The inherent tension between representative suits and the day-in-court ideal is only magnified if applied to damages claims gathered in a mandatory class. Unlike Rule 23(b)(3) class members, objectors to the collectivism of a mandatory *847 subdivision (b)(1)(B) action have no inherent right to abstain. The legal rights of absent class members (which in a class like this one would include claimants who by definition may be unidentifiable when the class is certified) are resolved regardless of either their consent, or, in a class with objectors, their express wish to the contrary.[23] And in settlement-only class actions the procedural protections built into the Rule to protect the rights of absent class members during litigation are never invoked in an adversarial setting, see Amchem, supra, at 620.
In related circumstances, we raised the flag on this issue of due process more than a decade ago in Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985). Shutts was a state class action for small sums of interest on royalty payments suspended on the authority of a federal regulation. Id., at 800. After certification of the class, the named plaintiffs notified each member by first-class mail of the right to opt out of the lawsuit. Out of a class of 33,000, some 3,400 exercised that right, and another 1,500 were excluded because their notices could not be delivered. Id., at 801. After losing at trial, the defendant, Phillips Petroleum, argued that the state court had no jurisdiction over claims of out-of-state plaintiffs without their affirmative consent. We said no and held that out-of-state plaintiffs could not invoke the same due process limits on personal jurisdiction that out-of-state defendants had under International Shoe Co. v. Washington, 326 U. S. *848 310 (1945), and its progeny. 472 U.S., at 806-808. But we also saw that before an absent class member's right of action was extinguishable due process required that the member "receive notice plus an opportunity to be heard and participate in the litigation," and we said that "at a minimum . . . an absent plaintiff [must] be provided with an opportunity to remove himself from the class." Id., at 812.[24]
IV
The record on which the District Court rested its certification of the class for the purpose of the global settlement did not support the essential premises of mandatory limited fund actions. It failed to demonstrate that the fund was limited except by the agreement of the parties, and it showed exclusions from the class and allocations of assets at odds with the concept of limited fund treatment and the structural protections of Rule 23(a) explained in Amchem.
A
The defect of certification going to the most characteristic feature of a limited fund action was the uncritical adoption by both the District Court and the Court of Appeals of figures [25] agreed upon by the parties in defining the limits of the fund and demonstrating its inadequacy.[26] When a district *849 court, as here, certifies for class action settlement only, the moment of certification requires "heightene[d] attention," Amchem, 521 U. S., at 620, to the justifications for binding the class members. This is so because certification of a mandatory settlement class, however provisional technically, effectively concludes the proceeding save for the final fairness hearing. And, as we held in Amchem, a fairness hearing under Rule 23(e) is no substitute for rigorous adherence to those provisions of the Rule "designed to protect absentees," ibid., among them subdivision (b)(1)(B).[27] Thus, in an action such as this the settling parties must present not only their agreement, but evidence on which the district court may ascertain the limit and the insufficiency of the fund, with support in findings of fact following a proceeding in which the evidence is subject to challenge, see In re Bendect in Products Liability Litigation, 749 F.2d 300, 306 (CA6 1984) ("[T]he district court, as a matter of law, must have a fact-finding inquiry on this question and allow the opponents of class certification to present evidence that a limited fund *850 does not exist"); see also In re Temple, 851 F.2d 1269, 1272 (CA11 1988) ("Without a finding as to the net worth of the defendant, it is difficult to see how the fact of a limited fund could have been established given that all of [the defendant's] assets are potentially available to suitors"); In re Dennis Greenman Securities Litigation, 829 F.2d 1539, 1546 (CA11 1987) (discussing factual findings necessary for certification of a limited fund class action).
We have already alluded to the difficulties facing limited fund treatment of huge numbers of actions for unliquidated damages arising from mass torts, the first such hurdle being a computation of the total claims. It is simply not a matter of adding up the liquidated amounts, as in the models of limited fund actions. Although we might assume, arguendo, that prior judicial experience with asbestos claims would allow a court to make a sufficiently reliable determination of the probable total, the District Court here apparently thought otherwise, concluding that "there is no way to predict Fibreboard's future asbestos liability with any certainty." 162 F. R. D., at 528. Nothing turns on this conclusion, however, since there was no adequate demonstration of the second element required for limited fund treatment, the upper limit of the fund itself, without which no showing of insufficiency is possible.
The "fund" in this case comprised both the general assets of Fibreboard and the insurance assets provided by the two policies, see 90 F.3d, at 982 (describing the fund as Fibreboard's entire equity and $2 billion in insurance assets under the Trilateral Settlement Agreement). As to Fibreboard's assets exclusive of the contested insurance, the District Court and the Fifth Circuit concluded that Fibreboard had a then-current sale value of $235 million that could be devoted to the limited fund. While that estimate may have been conservative,[28] at least the District Court heard evidence *851 and made an independent finding at some point in the proceedings. The same, however, cannot be said for the value of the disputed insurance.
The insurance assets would obviously be "limited" in the traditional sense if the total of demonstrable claims would render the insurers insolvent, or if the policies provided aggregate limits falling short of that total; calculation might be difficult, but the way to demonstrate the limit would be clear. Neither possibility is presented in this case, however. Instead, any limit of the insurance asset here had to be a product of potentially unlimited policy coverage discounted by the risk that Fibreboard would ultimately lose the coverage dispute litigation. This sense of limit as a value discounted by risk is of course a step removed from the historical model, but even on the assumption that it would suffice for limited fund treatment, there was no adequate finding of fact to support its application here. Instead of undertaking an independent evaluation of potential insurance funds, the District Court (and, later, the Court of Appeals), simply accepted the $2 billion Trilateral Settlement Agreement figure as representing the maximum amount the insurance companies could be required to pay tort victims, concluding that "[w]here insurance coverage is disputed, it is appropriate to value the insurance asset at a settlement value." App. to Pet. for Cert. 492a.[29]
*852 Settlement value is not always acceptable, however. One may take a settlement amount as good evidence of the maximum available if one can assume that parties of equal knowledge and negotiating skill agreed upon the figure through arms-length bargaining, unhindered by any considerations tugging against the interests of the parties ostensibly represented in the negotiation. But no such assumption may be indulged in this case, or probably in any class action settlement with the potential for gigantic fees.[30] In this case, certainly, any assumption that plaintiffs' counsel could be of a mind to do their simple best in bargaining for the benefit of the settlement class is patently at odds with the fact that at least some of the same lawyers representing plaintiffs and the class had also negotiated the separate settlement of 45,000 pending claims, 90 F.3d, at 969-970, 971, the full payment of which was contingent on a successful Global Settlement Agreement or the successful resolution of the insurance coverage dispute (either by litigation or by agreement, as eventually occurred in the Trilateral Settlement Agreement), id., at 971, n. 3; App. 119a-120a. Class counsel thus had great incentive to reach any agreement in the global settlement negotiations that they thought might survive a Rule 23(e) fairness hearing, rather than the best possible arrangement for the substantially unidentified global settlement class. Cf. Cramton, Individualized Justice, Mass *853 Torts, and "Settlement Class Actions": An Introduction, 80 Cornell L. Rev. 811, 832 (1995) ("[S]ide settlements suggest that class counsel has been laboring under an impermissible conflict of interest and that it may have preferred the interests of current clients to those of the future claimants in the settlement class"). The resulting incentive to favor the known plaintiffs in the earlier settlement was, indeed, an egregious example of the conflict noted in Amchem resulting from divergent interests of the presently injured and future claimants. See 521 U.S., at 626-627 (discussing adequacy of named representatives under Rule 23(a)(4)).
We do not, of course, know exactly what an independent valuation of the limit of the insurance assets would have shown. It might have revealed that even on the assumption that Fibreboard's coverage claim was sound, there would be insufficient assets to pay claims, considered with reference to their probable timing; if Fibreboard's own assets would not have been enough to pay the insurance shortfall plus any claims in excess of policy limits, the projected insolvency of the insurers and Fibreboard would have indicated a truly limited fund. (Nothing in the record, however, suggests that this would have been a supportable finding.) Or an independent valuation might have revealed assets of insufficient value to pay all projected claims if the assets were discounted by the prospects that the insurers would win the coverage cases. Or the court's independent valuation might have shown, discount or no discount, the probability of enough assets to pay all projected claims, precluding certification of any mandatory class on a limited fund rationale. Throughout this litigation the courts have accepted the assumption that the third possibility was out of the question, and they may have been right. But objecting and unidentified class members alike are entitled to have the issue settled by specific evidentiary findings independent of the agreement of defendants and conflicted class counsel.
*854 B
The explanation of need for independent determination of the fund has necessarily anticipated our application of the requirement of equity among members of the class. There are two issues, the inclusiveness of the class and the fairness of distributions to those within it. On each, this certification for settlement fell short.
The definition of the class excludes myriad claimants with causes of action, or foreseeable causes of action, arising from exposure to Fibreboard asbestos. While the class includes those with present claims never filed, present claims withdrawn without prejudice, and future claimants, it fails to include those who had previously settled with Fibreboard while retaining the right to sue again "upon development of an asbestos related malignancy," plaintiffs with claims pending against Fibreboard at the time of the initial announcement of the Global Settlement Agreement, and the plaintiffs in the "inventory" claims settled as a supposedly necessary step in reaching the global settlement, see 90 F.3d, at 971. The number of those outside the class who settled with a reservation of rights may be uncertain, but there is no such uncertainty about the significance of the settlement's exclusion of the 45,000 inventory plaintiffs and the plaintiffs in the unsettled present cases, estimated by the Guardian Ad Litem at more than 53,000 as of August 27, 1993, see App. in No. 95-40635 (CA5), 6 Record, Tab 55, p. 72 (Report of the Guardian Ad Litem). It is a fair question how far a natural class may be depleted by prior dispositions of claims and still qualify as a mandatory limited fund class, but there can be no question that such a mandatory settlement class will not qualify when in the very negotiations aimed at a class settlement, class counsel agree to exclude what could turn out to be as much as a third of the claimants that negotiators thought might eventually be involved, a substantial number of whom class counsel represent, see App. to Pet. for Cert. *855 321a (noting that the parties negotiating the global settlement agreed to use a negotiating benchmark of 186,000 future claims against Fibreboard).
Might such class exclusions be forgiven if it were shown that the class members with present claims and the outsiders ended up with comparable benefits? The question is academic here. On the record before us, we cannot speculate on how the unsettled claims would fare if the global settlement were approved, or under the trilateral settlement. As for the settled inventory claims, their plaintiffs appeared to have obtained better terms than the class members. They received an immediate payment of 50 percent of a settlement higher than the historical average, and would get the remainder if the global settlement were sustained (or the coverage litigation resolved, as it turned out to be by the Trilateral Settlement Agreement); the class members, by contrast, would be assured of a 3-year payout for claims settled, whereas the unsettled faced a prospect of mediation followed by arbitration as prior conditions of instituting suit, which would even then be subject to a recovery limit, a slower payout, and the limitations of the trust's spendthrift protection. See supra, at 827. Finally, as discussed below, even ostensible parity between settling nonclass plaintiffs and class members would be insufficient to overcome the failure to provide the structural protection of independent representation as for subclasses with conflicting interests.
On the second element of equity within the class, the fairness of the distribution of the fund among class members, the settlement certification is likewise deficient. Fair treatment in the older cases was characteristically assured by straightforward pro rata distribution of the limited fund. See supra, at 841. While equity in such a simple sense is unattainable in a settlement covering present claims not specifically proven and claims not even due to arise, if at all, until some future time, at the least such a settlement must *856 seek equity by providing for procedures to resolve the difficult issues of treating such differently situated claimants with fairness as among themselves.
First, it is obvious after Amchem that a class divided between holders of present and future claims (some of the latter involving no physical injury and attributable to claimants not yet born) requires division into homogeneous subclasses under Rule 23(c)(4)(B), with separate representation to eliminate conflicting interests of counsel. See Amchem, 521 U. S., at 627 (class settlements must provide "structural assurance of fair and adequate representation for the diverse groups and individuals affected"); cf. 5 J. Moore, T. Chorvat, D. Feinberg, R. Marmer, & J. Solovy, Moore's Federal Practice 23.25[5][e], p. 23-149 (3d ed. 1998) (an attorney who represents another class against the same defendant may not serve as class counsel).[31] As we said in Amchem, "for the currently injured, the critical goal is generous immediate payments," but "[t]hat goal tugs against the interest of exposure-only plaintiffs in ensuring an ample, inflationprotected fund for the future." 521 U.S., at 626. No such procedure was employed here, and the conflict was as contrary to the equitable obligation entailed by the limited fund *857 rationale as it was to the requirements of structural protection applicable to all class actions under Rule 23(a)(4).
Second, the class included those exposed to Fibreboard's asbestos products both before and after 1959. The date is significant, for that year saw the expiration of Fibreboard's insurance policy with Continental, the one that provided the bulk of the insurance funds for the settlement. Pre-1959 claimants accordingly had more valuable claims than post1959 claimants, see 90 F.3d, at 1012-1013 (Smith, J., dissenting), the consequence being a second instance of disparate interests within the certified class. While at some point there must be an end to reclassification with separate counsel, these two instances of conflict are well within the requirement of structural protection recognized in Amchem.
It is no answer to say, as the Fifth Circuit said on remand, that these conflicts may be ignored because the settlement makes no disparate allocation of resources as between the conflicting classes. See 134 F.3d, at 669-670. The settlement decides that the claims of the immediately injured deserve no provisions more favorable than the more speculative claims of those projected to have future injuries, and that liability subject to indemnification is no different from liability with no indemnification. The very decision to treat them all the same is itself an allocation decision with results almost certainly different from the results that those with immediate injuries or claims of indemnified liability would have chosen.
Nor does it answer the settlement's failures to provide structural protections in the service of equity to argue that the certified class members' common interest in securing contested insurance funds for the payment of claims was so weighty as to diminish the deficiencies beneath recognition here. See Brief for Respondent Class Representatives Ahearn et al. 31 (discussing this issue in the context of the Rule 23(a)(4) adequacy of representation requirement); id., *858 at 35-36 (citing, e. g., In re "Agent Orange" Product Liability Litigation, 996 F.2d 1425, 1435-1436 (CA2 1993); In re "Agent Orange" Product Liability Litigation, 800 F.2d 14, 18-19 (CA2 1986)). This argument is simply a variation of the position put forward by the proponents of the settlement in Amchem, who tried to discount the comparable failure in that case to provide separate representatives for subclasses with conflicting interests, see Brief for Petitioners in Amchem Products, Inc. v. Windsor, O. T. 1996, No. 96-270, p. 48 (arguing that "achieving a global settlement" was "an overriding concern that all plaintiffs [held] in common"); see also id., at 42 (arguing that the requirement of Rule 23(b)(3) that there be predominance of common questions of law or fact had been met by shared interest in "the fairness of the settlement"). The current position is just as unavailing as its predecessor in Amchem. There we gave the argument no weight, see 521 U.S., at 625-628, observing that "[t]he benefits asbestos-exposed persons might gain from the establishment of a grand-scale compensation scheme is a matter fit for legislative consideration," but the determination whether "proposed classes are sufficiently cohesive to warrant adjudication" must focus on "questions that preexist any settlement," id., at 622-623.[32] Here, just as in the earlier case, the proponents of the settlement are trying to rewrite Rule 23; each ignores the fact that Rule 23 requires protections under subdivisions (a) and (b) against inequity and potential inequity at the precertification stage, quite independently of the required determination at postcertification fairness review under subdivision (e) that any settlement is fair in an overriding sense. A fairness hearing under subdivision (e) can no more swallow the preceding protective requirements *859 of Rule 23 in a subdivision (b)(1)(B) action than in one under subdivision (b)(3).[33]
C
A third contested feature of this settlement certification that departs markedly from the limited fund antecedents is the ultimate provision for a fund smaller than the assets understood by the Court of Appeals to be available for payment of the mandatory class members' claims; most notably, Fibreboard was allowed to retain virtually its entire net worth. Given our treatment of the two preceding deficiencies of the certification, there is of course no need to decide whether this feature of the agreement would alone be fatal to the Global Settlement Agreement. To ignore it entirely, however, would be so misleading that we have decided simply to identify the issue it raises, without purporting to resolve it at this time.
Fibreboard listed its supposed entire net worth as a component of the total (and allegedly inadequate) assets available for claimants, but subsequently retained all but $500,000 *860 of that equity for itself.[34] On the face of it, the arrangement seems irreconcilable with the justification of necessity in denying any opportunity for withdrawal of class members whose jury trial rights will be compromised, whose damages will be capped, and whose payments will be delayed. With Fibreboard retaining nearly all its net worth, it hardly appears that such a regime is the best that can be provided for class members. Given the nature of a limited fund and the need to apply its criteria at the certification stage, it is not enough for a District Court to say that it "need not ensure that a defendant designate a particular source of its assets to satisfy the class' claims; [but only that] the amount recovered by the class [be] fair." Ahearn, 162 F. R. D., at 527.
The District Court in this case seems to have had a further point in mind, however. One great advantage of class action treatment of mass tort cases is the opportunity to save the enormous transaction costs of piecemeal litigation, an advantage to which the settlement's proponents have referred in this case.[35] Although the District Court made no specific *861 finding about the transaction cost saving likely from this class settlement, estimating the amount in the "hundreds of millions," id., at 529, it did conclude that the amount would exceed Fibreboard's net worth as the Court valued it, ibid. (Fibreboard's net worth of $235 million "is considerably less than the likely savings in defense costs under the Global Settlement"). If a settlement thus saves transaction costs that would never have gone into a class member's pocket in the absence of settlement, may a credit for some of the savings be recognized in a mandatory class action as an incentive to settlement? It is at least a legitimate question, which we leave for another day.
V
Our decision rests on a different basis from the ground of Justice Breyer's dissent, just as there was a difference in approach between majority and dissenters in Amchem. The nub of our position is that we are bound to follow Rule 23 as we understood it upon its adoption, and that we are not free to alter it except through the process prescribed by Congress in the Rules Enabling Act. Although, as the dissent notes, post, at 882, the revised text adopted in 1966 was understood (somewhat cautiously) to authorize the courts to provide for class treatment of mass tort litigation, it was also *862 the Court's understanding that the Rule's growing edge for that purpose would be the opt-out class authorized by subdivision (b)(3), not the mandatory class under subdivision (b)(1)(B), see supra, at 843-844. While we have not ruled out the possibility under the present Rule of a mandatory class to deal with mass tort litigation on a limited fund rationale, we are not free to dispense with the safeguards that have protected mandatory class members under that theory traditionally.
Apart from its effect on the requirements of subdivision (a) as explained and held binding in Amchem, the dissent would move the standards for mandatory actions in the direction of opt-out class requirements by according weight to this "unusual limited fund[`s] . . . witching hour," post, at 877, in exercising discretion over class certification. It is on this belief (that we should sustain the allowances made by the District Court in consideration of the exigencies of this settlement proceeding) that the dissent addresses each of the criteria for limited fund treatment (demonstrably insufficient fund, intraclass equity, and dedication of the entire fund, see post, at 873-883).
As to the calculation of the fund, the dissent believes an independent valuation by the District Court may be dispensed with here in favor of the figure agreed upon by the settling parties. The dissent discounts the conflicts on the part of class counsel who negotiated the Global Settlement Agreement by arguing that the "relevant" settlement negotiation, and hence the relevant benchmark for judging the actual value of the insurance amount, was the negotiation between Fibreboard and the insurers that produced the Trilateral Settlement Agreement. See post, at 876. This argument, however, minimizes two facts: (1) that Fibreboard and the insurers made this separate, backup agreement only at the insistence of class counsel as a condition for reaching the Global Settlement Agreement; (2) even more important, that "[t]he Insurers were . . . adamant that they would not agree *863 to pay any more in the context of a backup agreement than in a global agreement," a principle "Fibreboard acceded to" on the day the Global Settlement Agreement was announced "as the price of permitting an agreement to be reached with respect to a global settlement," Ahearn, 162 F. R. D., at 516. Under these circumstances the reliability of the Trilateral Settlement Agreement's figure is inadequate as an independent benchmark that might excuse the want of any independent judicial determination that the Global Settlement Agreement's fund was the maximum possible. In any event, the dissent says, it is not crucial whether a $30 claim has to settle for $15 or $20. But it is crucial. Conflict-free counsel, as required by Rule 23(a) and Amchem, might have negotiated a $20 figure, and a limited fund rationale for mandatory class treatment of a settlement-only action requires assurance that claimants are receiving the maximum fund, not a potentially significant fraction less.
With respect to the requirement of intraclass equity, the dissent argues that conflicts both within this certified class and between the class as certified and those excluded from it may be mitigated because separate counsel were simply not to be had in the short time that a settlement agreement was possible before the argument (or likely decision) in the coverage case. But this is to say that when the clock is about to strike midnight, a court considering class certification may lower the structural requirements of Rule 23(a) as declared in Amchem, and the parallel equity requirements necessary to justify mandatory class treatment on a limited fund theory.
Finally, the dissent would excuse Fibreboard's retention of virtually all its net worth, and the loss to members of the certified class of some 13 percent of the fund putatively available to them, on the ground that the settlement made more money available than any other effort would likely have done. But even if we could be certain that this evaluation were true, this is to reargue Amchem: the settlement's fairness *864 under Rule 23(e) does not dispense with the requirements of Rules 23(a) and (b).
We believe that if an allowance for exigency can make a substantial difference in the level of Rule 23 scrutiny, the economic temptations at work on counsel in class actions will guarantee enough exigencies to take the law back before Amchem and unsettle the line between mandatory class actions under subdivision (b)(1)(B) and opt-out actions under subdivision (b)(3).
VI
In sum, the applicability of Rule 23(b)(1)(B) to a fund and plan purporting to liquidate actual and potential tort claims is subject to question, and its purported application in this case was in any event improper. The Advisory Committee did not envision mandatory class actions in cases like this one, and both the Rules Enabling Act and the policy of avoiding serious constitutional issues counsel against leniency in recognizing mandatory limited fund actions in circumstances markedly different from the traditional paradigm. Assuming, arguendo, that a mandatory, limited fund rationale could under some circumstances be applied to a settlement class of tort claimants, it would be essential that the fund be shown to be limited independently of the agreement of the parties to the action, and equally essential under Rules 23(a) and (b)(1)(B) that the class include all those with claims unsatisfied at the time of the settlement negotiations, with intraclass conflicts addressed by recognizing independently represented subclasses. In this case, the limit of the fund was determined by treating the settlement agreement as dispositive, an error magnified by the representation of class members by counsel also representing excluded plaintiffs, whose settlements would be funded fully upon settlement of the class action on any terms that could survive final fairness review. Those separate settlements, together with other exclusions from the claimant class, precluded adequate structural protection by subclass treatment, which was not even *865 afforded to the conflicting elements within the class as certified.
The judgment of the Court of Appeals, accordingly, is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered. | This case turns on the conditions for certifying a mandatory settlement class on a limited fund theory under Federal Rule of Civil Procedure 23(b)(1)(B). We hold that applicants for contested certification on this rationale must show that the fund is limited by more than the agreement of the parties, and has been allocated to claimants belonging within the class by a process addressing any conflicting interests of class members. I Like Products, this case is a class action prompted by the elephantine mass of asbestos cases, and our discussion in will suffice to show how this litigation defies customary judicial administration and calls for national legislation.[1] In 1967, one of the first actions for personal asbestos injury was filed in the United States District Court for the Eastern District *822 of Texas against a group of asbestos manufacturers. App. to Pet. for Cert. 252a. In the 1970's and 1980's, plaintiffs' lawyers throughout the country, particularly in East Texas, honed the litigation of asbestos claims to the point of almost mechanical regularity, improving the forensic identification of diseases caused by asbestos, refining theories of liability, and often settling large inventories of cases. See D. Hensler, W. Felstiner, M. Selvin, & P. Ebener, Asbestos in the Courts: The Challenge of Mass Toxic Torts vii ; McGovern, Resolving Mature Mass Tort Litigation, 69 B. U. L. Rev. 659, 660-661 ; see also App. to Pet. for Cert. 253a. Respondent Fibreboard Corporation was a defendant in the 1967 action. Although it was primarily a timber company, from the 1920's through 1971 the company manufactured a variety of products containing asbestos, mainly for high-temperature industrial applications. As the tide of asbestos litigation rose, Fibreboard found itself litigating on two fronts. On one, plaintiffs were filing a stream of personal injury claims against it, swelling throughout the 1980's and 1990's to thousands of new claims for compensatory damages each year. at 265a; App. 10a. On the second front, Fibreboard was battling for funds to pay its tort claimants. From May 1957 through March 1959, respondent Continental Casualty Company had provided Fibreboard with a comprehensive general liability policy with limits of $1 million per occurrence, $500,000 per claim, and no aggregate limit. Fibreboard also claimed that respondent Pacific Indemnity Company had insured it from 1956 to 1957 under a similar policy. App. to Pet. for Cert. 267a-268a. Beginning in 1979, Fibreboard was locked in coverage litigation with Continental and Pacific in a California state trial court, which in 1990 held Continental and Pacific responsible for indemnification as to any claim by a claimant exposed to Fibreboard asbestos products prior to their policies' respective *823 expiration dates. at 268a-269a. The decree also required the insurers to pay the full cost of defense for each claim covered. The insurance companies appealed. With asbestos case filings continuing unabated, and its secure insurance assets almost depleted, Fibreboard in began a practice of "structured settlement," paying plaintiffs percent of the settlement figure up front with the balance contingent upon a successful resolution of the coverage dispute.[2] By 1991, however, the pace of filings forced Fibreboard to start settling cases entirely with the assignments of its rights against Continental, with no initial payment. To reflect the risk that Continental might prevail in the coverage dispute, these assignment agreements generally carried a figure about twice the nominal amount of earlier settlements. Continental challenged Fibreboard's right to make unilateral assignments, but in 1992 a California state court ruled for Fibreboard in that dispute.[3] Meanwhile, in the aftermath of a 1990 Federal Judicial Center conference on the asbestos litigation crisis, Fibreboard approached a group of leading asbestos plaintiffs' lawyers, offering to discuss a "global settlement" of its asbestos *824 personal-injury liability. Early negotiations bore relatively little fruit, save for the December 1992 settlement by assignment of a significant inventory of pending claims. This settlement brought Fibreboard's deferred settlement obligations to more than $1.2 billion, all contingent upon victory over Continental on the scope of coverage and the validity of the settlement assignments. In February after Continental had lost on both issues at the trial level, and thus faced the possibility of practically unbounded liability, it too joined the global settlement negotiations. Because Continental conditioned its part in any settlement on a guarantee of "total peace," ensuring no unknown future liabilities, talks focused on the feasibility of a mandatory class action, one binding all potential plaintiffs and giving none of them any choice to opt out of the certified class. Negotiations continued throughout the spring and summer of but the difficulty of settling both actually pending and potential future claims simultaneously led to an agreement in early August to segregate and settle an inventory of some 45,000 pending claims, being substantially all those filed by one of the plaintiffs' firms negotiating the global settlement. The settlement amounts per claim were higher than average, with one-half due on closing and the remainder contingent upon either a global settlement or Fibreboard's success in the coverage litigation. This agreement provided the model for settling inventory claims of other firms. With the insurance companies' appeal of the consolidated coverage case set to be heard on August 27, the negotiating parties faced a motivating deadline, and about midnight before the argument, in a coffee shop in Tyler, Texas, the negotiators finally agreed upon $1.535 billion as the key term of a "Global Settlement Agreement." $1.525 billion of this sum would come from Continental and Pacific, in the proportion established by the California trial court in the coverage case, *825 while Fibreboard would contribute $10 million, all but $500,000 of it from other insurance proceeds, App. 84a. The negotiators also agreed to identify unsettled present claims against Fibreboard and set aside an as-then unspecified fund to resolve them, anticipating that the bulk of any excess left in that fund would be transferred to class claimants. Ahearn v. Fibreboard Corp., 162 F. R. D. 505, 517 The next day, as a hedge against the possibility that the Global Settlement Agreement might fail, plaintiffs' counsel insisted as a condition of that agreement that Fibreboard and its two insurers settle the coverage dispute by what came to be known as the "Trilateral Settlement Agreement." The two insurers agreed to provide Fibreboard with funds eventually set at $2 billion to defend against asbestos claimants and pay the winners, should the Global Settlement Agreement fail to win approval. ; see also App. to Pet. for Cert. 492a.[4] On September 9, as agreed, a group of named plaintiffs filed an action in the United States District Court for the Eastern District of Texas, seeking certification for settlement purposes of a mandatory class comprising three groups: all persons with personal injury claims against Fibreboard for asbestos exposure who had not yet brought suit or settled their claims before the previous August 27; those who had dismissed such a claim but retained the right to bring a future action against Fibreboard; and "past, present and future spouses, parents, children, and other relatives" of class members *826 exposed to Fibreboard asbestos.[5] The class did not include claimants with actions presently pending against Fibreboard or claimants "who filed and, for cash payment or some other negotiated value, dismissed claims against Fibreboard, and whose only retained right is to sue Fibreboard upon development of an asbestos-related malignancy." *827 at a-535a. The complaint pleaded personal injury claims against Fibreboard, and, as justification for class certification, relied on the shared necessity of ensuring insurance funds sufficient for compensation. at 552a-569a. After Continental and Pacific had obtained leave to intervene as party-defendants, the District Court provisionally granted class certification, enjoined commencement of further separate litigation against Fibreboard by class members, and appointed a guardian ad litem to review the fairness of the settlement to the class members. See In re Asbestos Litigation, As finally negotiated, the Global Settlement Agreement provided that in exchange for full releases from class members, Fibreboard, Continental, and Pacific would establish a trust to process and pay class members' asbestos personal injury and death claims. Claimants seeking compensation would be required to try to settle with the trust. If initial settlement attempts failed, claimants would have to proceed to mediation, arbitration, and a mandatory settlement conference. Only after exhausting that process could claimants go to court against the trust, subject to a limit of $500,000 per claim, with punitive damages and prejudgment interest barred. Claims resolved without litigation would be discharged over three years, while judgments would be paid out over a 5- to 10-year period. The Global Settlement Agreement also contained spendthrift provisions to conserve the trust, and provided for paying more serious claims first in the event of a shortfall in any given year. After an extensive campaign to give notice of the pending settlement to potential class members, the District Court allowed groups of objectors, including petitioners here, to intervene. After an 8-day fairness hearing, the District Court certified the class and approved the settlement as "fair, adequate, and reasonable" under Rule 23(e). Ahearn, 162 F. R. D., Satisfied that the requirements of Rule *828 23(a) were met,[6] the District Court certified the class under Rule 23(b)(1)(B),[7] citing the risk that Fibreboard might lose or fare poorly on appeal of the coverage case or lose the assignment-settlement dispute, leaving it without funds to pay all claims. The "allowance of individual adjudications by class members," the District Court concluded, "would have destroyed the opportunity to compromise the insurance coverage dispute by creating the settlement fund, and would have exposed the class members to the very risks that the settlement addresses." In response to intervenors' objections that the absence of a "limited fund" precluded certification under Rule 23(b)(1)(B), the District Court ruled that although the subdivision is not so restricted, if it were, this case would qualify. It found both the "disputed insurance asset liquidated by the $1.535 billion Global Settlement," and, alternatively, "the sum of the value of Fibreboard plus the value of its insurance coverage," as measured by the insurance funds' settlement value, to be relevant "limited funds." App. to Pet. for Cert. 491a-492a. On appeal, the Fifth Circuit affirmed both as to class certification and adequacy of settlement. In re Asbestos Litiga- *829 tion, supra.[8] Agreeing with the District Court's application of Rule 23(a), the Court of Appeals found that there was commonality in class members' shared interest in securing and equitably distributing maximum possible settlement funds, and that the representative plaintiffs were sufficiently typical both in sharing that interest and in basing their claims on the same legal and remedial theories that absent class members might raise. The Fifth Circuit also thought that there were no conflicts of interest sufficiently serious to undermine the adequacy of class counsel's representation.[9] As to Rule 23(b)(1)(B), the court approved the class certification on a "limited fund" rationale based on the threat to "the ability of other members of the class to receive full payment for their injuries from Fibreboard's limited assets."[10] The Court of Appeals cited expert testimony that Fibreboard faced enormous potential liabilities and defense costs that would likely equal or exceed the amount of damages paid out, and concluded that even combining Fibreboard's value of some $235 million with the $2 billion provided in the Trilateral Settlement Agreement, the company would be unable to pay all valid claims against it within five to nine years. Judge Smith dissented, arguing among other things that the *830 majority had skimped on serious due process had glossed over problems of commonality, typicality, and adequacy of representation, and had ignored a number of justiciability issues. See generally[11] Shortly thereafter, this Court decided and proceeded to vacate the Fifth Circuit's judgment and remand for further consideration in light of that decision. On remand, the Fifth Circuit again affirmed, in a brief per curiam opinion, distinguishing on the grounds that the instant action proceeded under Rule 23(b)(1)(B) rather than (b)(3), and did not allocate awards according to the nature of the claimant's injury. In re Asbestos Litigation, Again citing the findings on certification under Rule 23(b)(1)(B), the Fifth Circuit affirmed as "incontestable" the District Court's conclusion that the terms of the subdivision had been met. The Court of Appeals acknowledged `s admonition that settlement class actions may not proceed unless the requirements of Rule 23(a) are met, but noted that the District Court had made extensive findings supporting its Rule 23(a) determinations. Judge Smith again dissented, reiterating his previous and argued specifically that the District Court erred in certifying the class under Rule 23(b)(1)(B) on a "limited fund" theory because the only limited fund in the case was a creature of the settlement itself. We granted certiorari, and now reverse. II The nub of this case is the certification of the class under Rule 23(b)(1)(B) on a limited fund rationale, but before we reach that issue, there are two threshold matters. First, *831 petitioners call the class claims nonjusticiable under Article III, saying that this is a feigned action initiated by Fibreboard to control its future asbestos tort liability, with the "vast majority" of the "exposure-only" class members being without injury in fact and hence without standing to sue. Brief for Petitioners 44-50. Ordinarily, of course, this or any other Article III court must be sure of its own jurisdiction before getting to the merits. Steel But the class certification issues are, as they were in "logically antecedent" to Article III and themselves pertain to statutory standing, which may properly be treated before Article III standing, see Steel Thus the issue about Rule 23 certification should be treated first, "mindful that [the Rule's] requirements must be interpreted in keeping with Article III constraints" Petitioners also argue that the Fifth Circuit on remand disregarded in passing on the Rule 23(a) issues of commonality, typicality, and adequacy of representation. Brief for Petitioners 13-22. We agree that in reinstating its affirmance of the District Court's certification decision, the Fifth Circuit fell short in its attention to 's explanation of the governing legal standards. Two aspects in particular of the District Court's certification should have received more detailed treatment by the Court of Appeals. First, the District Court's enquiry into both commonality and typicality focused almost entirely on the terms of the settlement. See Ahearn, 162 F. R. D., at 524.[12] Second, and more significantly, the District Court took no steps at the outset to ensure that the potentially conflicting interests of * easily identifiable categories of claimants be protected by provisional certification of subclasses under Rule 23(c)(4), relying instead on its post hoc findings at the fairness hearing that these subclasses in fact had been adequately represented. As will be seen, however, these points will reappear when we review the certification on the Court of Appeals's "limited fund" theory under Rule 23(b)(1)(B). We accordingly turn directly to that. III A Although representative suits have been recognized in various forms since the earliest days of English law, see generally S. Yeazell, From Medieval Group Litigation to the Modern Class Action ; see also Marcin, Searching for the Origin of the Class Action, class actions as we recognize them today developed as an exception to the formal rigidity of the necessary parties rule in equity, see Hazard, Gedid, & Sowle, An Historical Analysis of the Binding Effect of Class Suits, as well as from the bill of peace, an equitable device for combining multiple suits, see Z. Chafee, Some Problems of Equity 161-167, 200-203 (1950). The necessary parties rule in equity mandated that "all persons materially interested, either as plaintiffs or defendants in the subject matter of the bill ought to be made parties to the suit, however numerous they may be." (No. 17,424) (CC RI) (1820) (Story, J.). But because that rule would at times unfairly deny recovery to the party before the court, equity developed exceptions, among them one to cover situations "where the parties are very numerous, and the court perceives, that it will be almost impossible to bring them all before the court; or where the question is of general interest, and a few may sue for the benefit of the whole; or where the parties form a part of a voluntary association *833 for public or private purposes, and may be fairly supposed to represent the rights and interests of the whole" ; see J. Story, Commentaries on Equity Pleadings 97 (J. Gould 10th rev. ed. 1892); F. Calvert, A Treatise upon the Law Respecting Parties to Suits in Equity 17-29 (1837) (hereinafter Calvert, Parties to Suits in Equity). From these roots, modern class action practice emerged in the 1966 revision of Rule 23. In drafting Rule 23(b), the Advisory Committee sought to catalogue in "functional" terms "those recurrent life patterns which call for mass litigation through representative parties." Kaplan, A Prefatory Note, 10 Barb. C. Ind. & Com. L. Rev. 497 (1969). Rule 23(b)(1)(B) speaks from "a vantage point within the class, [from which the Advisory Committee] spied out situations where lawsuits conducted with individual members of the class would have the practical if not technical effect of concluding the interests of the other members as well, or of impairing the ability of the others to protect their own interests." Kaplan, Continuing Work of the Civil Committee: 1966 Amendments of the Federal Rules of Civil Procedure (I), Thus, the subdivision (read with subdivision (c)(2)) provides for certification of a class whose members have no right to withdraw, when "the prosecution of separate actions would create a risk" of "adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests." Fed. Rule Civ. Proc. 23(b)(1)(B).[13] Classic examples *834 of such a risk of impairment may, for example, be found in suits brought to reorganize fraternal-benefit societies, see, e. g., Supreme Tribe of ; actions by shareholders to declare a dividend or otherwise to "fix [their] rights," Kaplan, Continuing Work ; and actions charging "a breach of trust by an indenture trustee or other fiduciary similarly affecting the members of a large class" of beneficiaries, requiring an accounting or similar procedure "to restore the subject of the trust," Advisory Committee's Notes on Fed. Rule Civ. Proc. 23, 28 U.S. C. App., p. 696 (hereinafter Adv. Comm. Notes). In each of these categories, the shared character of rights claimed or relief awarded entails that any individual adjudication by a class member disposes of, or substantially affects, the interests of absent class members. Among the traditional varieties of representative suit encompassed by Rule 23(b)(1)(B) were those involving "the presence of property which call[ed] for distribution or management," J. Moore & J. Friedman, 2 Federal Practice 22 (1938) (hereinafter Moore & Friedman). One recurring type of such suits was the limited fund class action, aggregating "claims made by numerous persons against a fund insufficient to satisfy all claims." Adv. Comm. Notes 697; cf. 1 Newberg 4.09, at 4-33 ("Classic" limited fund class actions "include claimants to trust assets, a bank account, insurance proceeds, company assets in a liquidation sale, proceeds of a ship sale in a maritime accident suit, and others").[14] The Advisory Committee cited (CA2), cert. denied, as illustrative of this tradition. In Dickinson, investors hoping to save a failing company had contributed some $600,000, which had been misused until nothing was left but a pool of secret profits on a fraction of the original investment. In a class action, the District Court took charge of this fund, subjecting it to a constructive trust for division among subscribers who demonstrated their claims, in amounts proportional to each class member's percentage of all substantiated claims.[15] The Second Circuit approved the class action and the distribution of the entire pool to claimants, noting that "[a]lthough none of the contributors has been paid in full, no one now asserts or suggests that they should have full recovery as on an ordinary tort liability for conspiracy and defrauding. The court's power of disposition over the fund was therefore absolute *836 and final."[16] As the Advisory Committee recognized in describing Dickinson, equity required absent parties to be represented, joinder being impractical, where individual claims to be satisfied from the one asset would, as a practical matter, prejudice the rights of absent claimants against a fund inadequate to pay them all. Equity, of course, recognized the same necessity to bind absent claimants to a limited fund when no formal imposition of a constructive trust was entailed. In v. National Surety for example, the defendant received money to supply steamship tickets and had posted a $15,000 bond as required by state law. He converted to personal use funds collected from more than 150 ticket purchasers, was then adjudged bankrupt, and absconded. One of the defrauded ticket purchasers sued the surety in equity on behalf of himself and all others like him. Over the defendant's objection, the New York Court of Appeals sustained the equitable class suit, citing among other considerations the fact that all recovery had to come from a "limited fund out of which the aggregate recoveries must be sought" that was inadequate to pay all claims, and subject to pro rata distribution. at 90 N.E., at See Hazard, Gedid, & Sowle 1915 ("[] *837 explained that when a debtor's assets were less than the total of the creditors' claims, a binding class action was not only permitted but was required; otherwise some creditors (the parties) would be paid and others (the absentees) would not"). See also ; National Surety v. Graves, (suit against a surety company by stockholders "for the benefit of themselves and all others similarly situate who will join the suit" where it was alleged that individual suits were being filed on surety bonds that "would result in the exhaustion of the penalties of the bonds, leaving many stockholders without remedy"). presents the concept of the limited fund class action in another incarnation. "[D]ivers suits for general legacies," were brought by various legatees against the executor of a decedent's estate. The Ross court stated that where "there is an allegation of a deficiency of the fund, so that an account of the estate is necessary," the court will "direc[t] an account in one cause only" and "stay the proceeding[s] in the others, leaving all the parties interested in the fund, to come in under the decree." at Thus, in equity, legatee and creditor bills against the assets of a decedent's estate had to be brought on behalf of all similarly situated claimants where it was clear from the pleadings that the available portion of the estate could not satisfy the aggregate claims against it.[17] *838 B The cases forming this pedigree of the limited fund class action as understood by the drafters of Rule 23 have a number of common characteristics, despite the variety of circumstances from which they arose. The points of resemblance are not necessarily the points of contention resolved in the particular cases, but they show what the Advisory Committee must have assumed would be at least a sufficient set of conditions to justify binding absent members of a class under Rule 23(b)(1)(B), from which no one has the right to secede. The first and most distinctive characteristic is that the totals of the aggregated liquidated claims and the fund available for satisfying them, set definitely at their maximums, demonstrate the inadequacy of the fund to pay all the claims. The concept driving this type of suit was insufficiency, which alone justified the limit on an early feast to avoid a later famine. See, e. g., 90 N.E., at ("The total amount of the claims exceeds the penalty of the bond A just and equitable payment from the bond would be a distribution pro rata upon the amount of the several embezzlements. Unless in a case like this the amount *839 of the bond is so distributed among the persons having claims which are secured thereby, it must necessarily result in a scramble for precedence in payment, and the amount of the bond may be paid to the favored, or to those first obtaining knowledge of the embezzlements"); Graves, at The equity of the limitation is its necessity. Second, the whole of the inadequate fund was to be devoted to the overwhelming claims. See, e. g., Dickinson, 197 F. 2d, at 979-980 (rejecting a challenge by holder of funds to the court's disposition of the entire fund); see also United It went without saying that the defendant or estate or constructive trustee with the inadequate assets had no opportunity to benefit himself or claimants of lower priority by holding back on the amount distributed to the class. The limited fund cases thus ensured that the class as a whole was given the best deal; they did not give a defendant a better deal than seriatim litigation would have produced. Third, the claimants identified by a common theory of recovery were treated equitably among themselves. The cases assume that the class will comprise everyone who might state a claim on a single or repeated set of facts, invoking a common theory of recovery, to be satisfied from the limited fund as the source of payment. Each of the people represented in Ross, for example, had comparable entitlement as a legatee under the testator's will. Those subject to representation in Dickinson had a common source of claims in the solicitation of funds by parties whose subsequent defalcation left them without their investment, while in the individuals represented had each entrusted * money for ticket purchases. In these cases the hope of recovery was limited, respectively, by estate assets, the residuum of profits, and the amount of the bond. Once the represented classes were so identified, there was no question of omitting anyone whose claim shared the common theory of liability and would contribute to the calculated shortfall of recovery. See Railroad v. Orr, (reciting the "well settled" general rule "that when it appears on the face of the bill that there will be a deficiency in the fund, and that there are other creditors or legatees who are entitled to a ratable distribution with the complainants, and who have a common interest with them, such creditors or legatees should be made parties to the bill, or the suit should be brought by the complainants in behalf of themselves and all others standing in a similar situation"). The plaintiff appeared on behalf of all similarly situated parties, see Calvert, Parties to Suits in Equity 24 ("[I]t is not sufficient that the plaintiff appear on behalf of numerous parties: the rule seems to be, that he must appear on behalf of all who are interested"); thus, the creditors' bill was brought on behalf of all creditors, cf. Leigh v. Thomas, 2 Ves. Sen. 312, 313, 28 Eng. Rep. 201 (Ch. 1751) ("No doubt but a bill may be by a few creditors in behalf of themselves and the rest. but there is no instance of a bill by three or four to have an account of the estate, without saying they bring it in behalf of themselves and the rest of the creditors"), the constructive trust was asserted on behalf of all victims of the fraud, and the surety suit was brought on behalf of all entitled to a share of the bond.[18] Once all similar claims *841 were brought directly or by representation before the court, these antecedents of the mandatory class action presented straightforward models of equitable treatment, with the simple equity of a pro rata distribution providing the required fairness, see 1 J. Pomeroy, Equity Jurisprudence 7, pp. 764-765 (4th ed. 1918) ("[I]f the fund is not sufficient to discharge all claims upon it in full equity will incline to regard all the demands as standing upon an equal footing, and will decree a pro rata distribution or payment").[19] In sum, mandatory class treatment through representative actions on a limited fund theory was justified with reference to a "fund" with a definitely ascertained limit, all of which would be distributed to satisfy all those with liquidated claims based on a common theory of liability, by an equitable, pro rata distribution. C The Advisory Committee, and presumably the Congress in approving subdivision (b)(1)(B), must have assumed that an action with these characteristics would satisfy the limited *842 fund rationale cognizable under that subdivision. The question remains how far the same characteristics are necessary for limited fund treatment. While we cannot settle all the details of a subdivision (b)(1)(B) limited fund here (and so cannot decide the ultimate question whether settlements of multitudes of related tort actions are amenable to mandatory class treatment), there are good reasons to treat these characteristics as presumptively necessary, and not merely sufficient, to satisfy the limited fund rationale for a mandatory action. At the least, the burden of justification rests on the proponent of any departure from the traditional norm. It is true, of course, that the text of Rule 23(b)(1)(B) is on its face open to a more lenient limited fund concept, just as it covers more historical antecedents than the limited fund. But the greater the leniency in departing from the historical limited fund model, the greater the likelihood of abuse in ways that will be apparent when we apply the limited fund criteria to the case before us. The prudent course, therefore, is to presume that when subdivision (b)(1)(B) was devised to cover limited fund actions, the object was to stay close to the historical model. As will be seen, this limiting construction finds support in the Advisory Committee's expressions of understanding, minimizes potential conflict with the Rules Enabling Act, and avoids serious constitutional raised by the mandatory class resolution of individual legal claims, especially where a case seeks to resolve future liability in a settlement-only action. To begin with, the Advisory Committee looked cautiously at the potential for creativity under Rule 23(b)(1)(B), at least in comparison with Rule 23(b)(3). Although the Committee crafted all three subdivisions of the Rule in general, practical terms, without the formalism that had bedeviled the original Rule 23, see Kaplan, Continuing Work 380-386, the Committee was consciously retrospective with intent to codify preRule categories under Rule 23(b)(1), not forward looking as it was in anticipating innovations under Rule 23(b)(3). Compare *843 Civil Rules Advisory Committee Meeting, Oct. 31-Nov. 2, 1963, Congressional Information Service Records of the U. S. Judicial Conference, Committee on Rules of Practice and Procedure 1935-, No. CI-7104-53, p. 11 (hereinafter Civil Rules Meeting) (comments of Reporter Kaplan) (Rule 23(b)(3) represents "the growing point of the law"); (Rule 23(b)(3) is "an evolving area"). Thus, the Committee intended subdivision (b)(1) to capture the "`standard' " class actions recognized in pre-Rule practice, Kaplan, Continuing Work 394. Consistent with its backward look under subdivision (b)(1), as commentators have pointed out, it is clear that the Advisory Committee did not contemplate that the mandatory class action codified in subdivision (b)(1)(B) would be used to aggregate unliquidated tort claims on a limited fund rationale. See Monaghan, Antisuit Injunctions and Preclusion Against Absent Nonresident Class Members, `limited fund' classes would emerge as the functional equivalent to bankruptcy by embracing `funds' created by the litigation itself"); see also Schwarzer, Settlement of Mass Tort Class Actions: Order Out of Chaos, ; Marcus, They Can't Do That, Can They? Tort Reform Via Rule 23, None of the examples cited in the Advisory Committee Notes or by Professor Kaplan in explaining Rule 23(b)(1)(B) remotely approach what was then described as a "mass accident" case. While the Advisory Committee focused much attention on the amenability of Rule 23(b)(3) to such cases, *844 the Committee's debates are silent about resolving tort claims under a mandatory limited fund rationale under Rule 23(b)(1)(B).[20] It is simply implausible that the Advisory Committee, so concerned about the potential difficulties posed by dealing with mass tort cases under Rule 23(b)(3), with its provisions for notice and the right to opt out, see Rule 23(c)(2), would have uncritically assumed that mandatory versions of such class actions, lacking such protections, could be certified under Rule 23(b)(1)(B).[21] We do not, it is true, decide the ultimate question whether Rule 23(b)(1)(B) may ever be used to aggregate individual tort claims, cf. Ticor Title Ins. v. Brown, *845 (per curiam). But we do recognize that the Committee would have thought such an application of the Rule surprising, and take this as a good reason to limit any surprise by presuming that the Rule's historical antecedents identify requirements. The Rules Enabling Act underscores the need for caution. As we said in no reading of the Rule can ignore the Act's mandate that "rules of procedure `shall not abridge, enlarge or modify any substantive right,'" ; cf. Guaranty Trust v. York, Petitioners argue that the Act has been violated here, asserting that the Global Settlement Agreement's priorities of claims and compromise of full recovery abrogated the state law that must govern this diversity action under 28 U.S. C. 1652. See Brief for Petitioners 31-36. Although we need not grapple with the difficult choice-of-law and substantive state-law questions raised by petitioners' assertion, we do need to recognize the tension between the limited fund class action's pro rata distribution in equity and the rights of individual tort victims at law. Even if we assume that some such tension is acceptable under the Rules Enabling Act, it is best kept within tolerable limits by keeping limited fund practice under Rule 23(b)(1)(B) close to the practice preceding its adoption. Finally, if we needed further counsel against adventurous application of Rule 23(b)(1)(B), the Rules Enabling Act and the general doctrine of constitutional avoidance would jointly sound a warning of the serious constitutional that come with any attempt to aggregate individual tort claims on a limited fund rationale. First, the certification of a mandatory class followed by settlement of its action for money *846 damages obviously implicates the Seventh Amendment jury trial rights of absent class members.[22] We noted in that since the merger of law and equity in 1938, it has become settled among the lower courts that "class action plaintiffs may obtain a jury trial on any legal issues they present." By its nature, however, a mandatory settlement-only class action with legal issues and future claimants compromises their Seventh Amendment rights without their consent. Second, and no less important, mandatory class actions aggregating damages claims implicate the due process "principle of general application in Anglo-American jurisprudence that one is not bound by a judgment in personam in a litigation in which he is not designated as a party or to which he has not been made a party by service of process," it being "our `deep-rooted historic tradition that everyone should have his own day in court,' " ; see Although "`[w]e have recognized an exception to the general rule when, in certain limited circumstances, a person, although not a party, has his interests adequately represented by someone with the same interests who is a party," or "where a special remedial scheme exists expressly foreclosing successive litigation by nonlitigants, as for example in bankruptcy or probate," Martin, at n. 2 the burden of justification rests on the exception. The inherent tension between representative suits and the day-in-court ideal is only magnified if applied to damages claims gathered in a mandatory class. Unlike Rule 23(b)(3) class members, objectors to the collectivism of a mandatory *847 subdivision (b)(1)(B) action have no inherent right to abstain. The legal rights of absent class members (which in a class like this one would include claimants who by definition may be unidentifiable when the class is certified) are resolved regardless of either their consent, or, in a class with objectors, their express wish to the contrary.[23] And in settlement-only class actions the procedural protections built into the Rule to protect the rights of absent class members during litigation are never invoked in an adversarial setting, see In related circumstances, we raised the flag on this issue of due process more than a decade ago in Phillips Petroleum v. Shutts, Shutts was a state class action for small sums of interest on royalty payments suspended on the authority of a federal regulation. After certification of the class, the named plaintiffs notified each member by first-class mail of the right to opt out of the lawsuit. Out of a class of 33,000, some 3,0 exercised that right, and another 1,500 were excluded because their notices could not be delivered. After losing at trial, the defendant, Phillips Petroleum, argued that the state court had no jurisdiction over claims of out-of-state plaintiffs without their affirmative consent. We said no and held that out-of-state plaintiffs could not invoke the same due process limits on personal jurisdiction that out-of-state defendants had under International Shoe v. Washington, 326 U. S. *848 310 and its -808. But we also saw that before an absent class member's right of action was extinguishable due process required that the member "receive notice plus an opportunity to be heard and participate in the litigation," and we said that "at a minimum an absent plaintiff [must] be provided with an opportunity to remove himself from the class."[24] IV The record on which the District Court rested its certification of the class for the purpose of the global settlement did not support the essential premises of mandatory limited fund actions. It failed to demonstrate that the fund was limited except by the agreement of the parties, and it showed exclusions from the class and allocations of assets at odds with the concept of limited fund treatment and the structural protections of Rule 23(a) explained in A The defect of certification going to the most characteristic feature of a limited fund action was the uncritical adoption by both the District Court and the Court of Appeals of figures [25] agreed upon by the parties in defining the limits of the fund and demonstrating its inadequacy.[26] When a district *849 court, as here, certifies for class action settlement only, the moment of certification requires "heightene[d] attention," 521 U. S., to the justifications for binding the class members. This is so because certification of a mandatory settlement class, however provisional technically, effectively concludes the proceeding save for the final fairness hearing. And, as we held in a fairness hearing under Rule 23(e) is no substitute for rigorous adherence to those provisions of the Rule "designed to protect absentees," ib among them subdivision (b)(1)(B).[27] Thus, in an action such as this the settling parties must present not only their agreement, but evidence on which the district court may ascertain the limit and the insufficiency of the fund, with support in findings of fact following a proceeding in which the evidence is subject to challenge, see In re Bendect in Products Liability Litigation, ; see also In re Temple, ; In re Dennis Greenman Securities Litigation, We have already alluded to the difficulties facing limited fund treatment of huge numbers of actions for unliquidated damages arising from mass torts, the first such hurdle being a computation of the total claims. It is simply not a matter of adding up the liquidated amounts, as in the models of limited fund actions. Although we might assume, arguendo, that prior judicial experience with asbestos claims would allow a court to make a sufficiently reliable determination of the probable total, the District Court here apparently thought otherwise, concluding that "there is no way to predict Fibreboard's future asbestos liability with any certainty." 162 F. R. D., at 528. Nothing turns on this conclusion, however, since there was no adequate demonstration of the second element required for limited fund treatment, the upper limit of the fund itself, without which no showing of insufficiency is possible. The "fund" in this case comprised both the general assets of Fibreboard and the insurance assets provided by the two policies, see 90 F.3d, As to Fibreboard's assets exclusive of the contested insurance, the District Court and the Fifth Circuit concluded that Fibreboard had a then-current sale value of $235 million that could be devoted to the limited fund. While that estimate may have been conservative,[28] at least the District Court heard evidence *851 and made an independent finding at some point in the proceedings. The same, however, cannot be said for the value of the disputed insurance. The insurance assets would obviously be "limited" in the traditional sense if the total of demonstrable claims would render the insurers insolvent, or if the policies provided aggregate limits falling short of that total; calculation might be difficult, but the way to demonstrate the limit would be clear. Neither possibility is presented in this case, however. Instead, any limit of the insurance asset here had to be a product of potentially unlimited policy coverage discounted by the risk that Fibreboard would ultimately lose the coverage dispute litigation. This sense of limit as a value discounted by risk is of course a step removed from the historical model, but even on the assumption that it would suffice for limited fund treatment, there was no adequate finding of fact to support its application here. Instead of undertaking an independent evaluation of potential insurance funds, the District Court (and, later, the Court of Appeals), simply accepted the $2 billion Trilateral Settlement Agreement figure as representing the maximum amount the insurance companies could be required to pay tort victims, concluding that "[w]here insurance coverage is disputed, it is appropriate to value the insurance asset at a settlement value." App. to Pet. for Cert. 492a.[29] *852 Settlement value is not always acceptable, however. One may take a settlement amount as good evidence of the maximum available if one can assume that parties of equal knowledge and negotiating skill agreed upon the figure through arms-length bargaining, unhindered by any considerations tugging against the interests of the parties ostensibly represented in the negotiation. But no such assumption may be indulged in this case, or probably in any class action settlement with the potential for gigantic fees.[30] In this case, certainly, any assumption that plaintiffs' counsel could be of a mind to do their simple best in bargaining for the benefit of the settlement class is patently at odds with the fact that at least some of the same lawyers representing plaintiffs and the class had also negotiated the separate settlement of 45,000 pending claims, -970, 971, the full payment of which was contingent on a successful Global Settlement Agreement or the successful resolution of the insurance coverage dispute (either by litigation or by agreement, as eventually occurred in the Trilateral Settlement Agreement), ; App. 119a-120a. Class counsel thus had great incentive to reach any agreement in the global settlement negotiations that they thought might survive a Rule 23(e) fairness hearing, rather than the best possible arrangement for the substantially unidentified global settlement class. Cf. Cramton, Individualized Justice, Mass *853 Torts, and "Settlement Class Actions": An Introduction, The resulting incentive to favor the known plaintiffs in the earlier settlement was, indeed, an egregious example of the conflict noted in resulting from divergent interests of the presently injured and future claimants. See -627 We do not, of course, know exactly what an independent valuation of the limit of the insurance assets would have shown. It might have revealed that even on the assumption that Fibreboard's coverage claim was sound, there would be insufficient assets to pay claims, considered with reference to their probable timing; if Fibreboard's own assets would not have been enough to pay the insurance shortfall plus any claims in excess of policy limits, the projected insolvency of the insurers and Fibreboard would have indicated a truly limited fund. (Nothing in the record, however, suggests that this would have been a supportable finding.) Or an independent valuation might have revealed assets of insufficient value to pay all projected claims if the assets were discounted by the prospects that the insurers would win the coverage cases. Or the court's independent valuation might have shown, discount or no discount, the probability of enough assets to pay all projected claims, precluding certification of any mandatory class on a limited fund rationale. Throughout this litigation the courts have accepted the assumption that the third possibility was out of the question, and they may have been right. But objecting and unidentified class members alike are entitled to have the issue settled by specific evidentiary findings independent of the agreement of defendants and conflicted class counsel. *854 B The explanation of need for independent determination of the fund has necessarily anticipated our application of the requirement of equity among members of the class. There are two issues, the inclusiveness of the class and the fairness of distributions to those within it. On each, this certification for settlement fell short. The definition of the class excludes myriad claimants with causes of action, or foreseeable causes of action, arising from exposure to Fibreboard asbestos. While the class includes those with present claims never filed, present claims withdrawn without prejudice, and future claimants, it fails to include those who had previously settled with Fibreboard while retaining the right to sue again "upon development of an asbestos related malignancy," plaintiffs with claims pending against Fibreboard at the time of the initial announcement of the Global Settlement Agreement, and the plaintiffs in the "inventory" claims settled as a supposedly necessary step in reaching the global settlement, see The number of those outside the class who settled with a reservation of rights may be uncertain, but there is no such uncertainty about the significance of the settlement's exclusion of the 45,000 inventory plaintiffs and the plaintiffs in the unsettled present cases, estimated by the Guardian Ad Litem at more than 53,000 as of August 27, see App. in No. 95-635 (CA5), 6 Record, Tab 55, p. 72 (Report of the Guardian Ad Litem). It is a fair question how far a natural class may be depleted by prior dispositions of claims and still qualify as a mandatory limited fund class, but there can be no question that such a mandatory settlement class will not qualify when in the very negotiations aimed at a class settlement, class counsel agree to exclude what could turn out to be as much as a third of the claimants that negotiators thought might eventually be involved, a substantial number of whom class counsel represent, see App. to Pet. for Cert. *855 321a (noting that the parties negotiating the global settlement agreed to use a negotiating benchmark of 186,000 future claims against Fibreboard). Might such class exclusions be forgiven if it were shown that the class members with present claims and the outsiders ended up with comparable benefits? The question is academic here. On the record before us, we cannot speculate on how the unsettled claims would fare if the global settlement were approved, or under the trilateral settlement. As for the settled inventory claims, their plaintiffs appeared to have obtained better terms than the class members. They received an immediate payment of 50 percent of a settlement higher than the historical average, and would get the remainder if the global settlement were sustained (or the coverage litigation resolved, as it turned out to be by the Trilateral Settlement Agreement); the class members, by contrast, would be assured of a 3-year payout for claims settled, whereas the unsettled faced a prospect of mediation followed by arbitration as prior conditions of instituting suit, which would even then be subject to a recovery limit, a slower payout, and the limitations of the trust's spendthrift protection. See Finally, as discussed below, even ostensible parity between settling nonclass plaintiffs and class members would be insufficient to overcome the failure to provide the structural protection of independent representation as for subclasses with conflicting interests. On the second element of equity within the class, the fairness of the distribution of the fund among class members, the settlement certification is likewise deficient. Fair treatment in the older cases was characteristically assured by straightforward pro rata distribution of the limited fund. See While equity in such a simple sense is unattainable in a settlement covering present claims not specifically proven and claims not even due to arise, if at all, until some future time, at the least such a settlement must *856 seek equity by providing for procedures to resolve the difficult issues of treating such differently situated claimants with fairness as among themselves. First, it is obvious after that a class divided between holders of present and future claims (some of the latter involving no physical injury and attributable to claimants not yet born) requires division into homogeneous subclasses under Rule 23(c)(4)(B), with separate representation to eliminate conflicting interests of counsel. See ; cf. 5 J. Moore, T. Chorvat, D. Feinberg, R. Marmer, & J. Solovy, Moore's Federal Practice 23.25[5][e], p. 23-149 (an attorney who represents another class against the same defendant may not serve as class counsel).[31] As we said in "for the currently injured, the critical goal is generous immediate payments," but "[t]hat goal tugs against the interest of exposure-only plaintiffs in ensuring an ample, inflationprotected fund for the future." No such procedure was employed here, and the conflict was as contrary to the equitable obligation entailed by the limited fund *857 rationale as it was to the requirements of structural protection applicable to all class actions under Rule 23(a)(4). Second, the class included those exposed to Fibreboard's asbestos products both before and after 1959. The date is significant, for that year saw the expiration of Fibreboard's insurance policy with Continental, the one that provided the bulk of the insurance funds for the settlement. Pre-1959 claimants accordingly had more valuable claims than post1959 claimants, see -1013 the consequence being a second instance of disparate interests within the certified class. While at some point there must be an end to reclassification with separate counsel, these two instances of conflict are well within the requirement of structural protection recognized in It is no answer to say, as the Fifth Circuit said on remand, that these conflicts may be ignored because the settlement makes no disparate allocation of resources as between the conflicting classes. See 134 F.3d, at The settlement decides that the claims of the immediately injured deserve no provisions more favorable than the more speculative claims of those projected to have future injuries, and that liability subject to indemnification is no different from liability with no indemnification. The very decision to treat them all the same is itself an allocation decision with results almost certainly different from the results that those with immediate injuries or claims of indemnified liability would have chosen. Nor does it answer the settlement's failures to provide structural protections in the service of equity to argue that the certified class members' common interest in securing contested insurance funds for the payment of claims was so weighty as to diminish the deficiencies beneath recognition here. See Brief for Respondent Class Representatives Ahearn et al. 31 (discussing this issue in the context of the Rule 23(a)(4) adequacy of representation requirement); *858 at 35-36 ; In re "Agent Orange" Product Liability Litigation, ). This argument is simply a variation of the position put forward by the proponents of the settlement in who tried to discount the comparable failure in that case to provide separate representatives for subclasses with conflicting interests, see Brief for Petitioners in Products, O. T. No. 96-270, p. 48 (arguing that "achieving a global settlement" was "an overriding concern that all plaintiffs [held] in common"); see also The current position is just as unavailing as its predecessor in There we gave the argument no weight, see -628, observing that "[t]he benefits asbestos-exposed persons might gain from the establishment of a grand-scale compensation scheme is a matter fit for legislative consideration," but the determination whether "proposed classes are sufficiently cohesive to warrant adjudication" must focus on "questions that preexist any settlement,"[32] Here, just as in the earlier case, the proponents of the settlement are trying to rewrite Rule 23; each ignores the fact that Rule 23 requires protections under subdivisions (a) and (b) against inequity and potential inequity at the precertification stage, quite independently of the required determination at postcertification fairness review under subdivision (e) that any settlement is fair in an overriding sense. A fairness hearing under subdivision (e) can no more swallow the preceding protective requirements *859 of Rule 23 in a subdivision (b)(1)(B) action than in one under subdivision (b)(3).[33] C A third contested feature of this settlement certification that departs markedly from the limited fund antecedents is the ultimate provision for a fund smaller than the assets understood by the Court of Appeals to be available for payment of the mandatory class members' claims; most notably, Fibreboard was allowed to retain virtually its entire net worth. Given our treatment of the two preceding deficiencies of the certification, there is of course no need to decide whether this feature of the agreement would alone be fatal to the Global Settlement Agreement. To ignore it entirely, however, would be so misleading that we have decided simply to identify the issue it raises, without purporting to resolve it at this time. Fibreboard listed its supposed entire net worth as a component of the total (and allegedly inadequate) assets available for claimants, but subsequently retained all but $500,000 *860 of that equity for itself.[34] On the face of it, the arrangement seems irreconcilable with the justification of necessity in denying any opportunity for withdrawal of class members whose jury trial rights will be compromised, whose damages will be capped, and whose payments will be delayed. With Fibreboard retaining nearly all its net worth, it hardly appears that such a regime is the best that can be provided for class members. Given the nature of a limited fund and the need to apply its criteria at the certification stage, it is not enough for a District Court to say that it "need not ensure that a defendant designate a particular source of its assets to satisfy the class' claims; [but only that] the amount recovered by the class [be] fair." Ahearn, 162 F. R. D., The District Court in this case seems to have had a further point in mind, however. One great advantage of class action treatment of mass tort cases is the opportunity to save the enormous transaction costs of piecemeal litigation, an advantage to which the settlement's proponents have referred in this case.[35] Although the District Court made no specific *861 finding about the transaction cost saving likely from this class settlement, estimating the amount in the "hundreds of millions," it did conclude that the amount would exceed Fibreboard's net worth as the Court valued it, If a settlement thus saves transaction costs that would never have gone into a class member's pocket in the absence of settlement, may a credit for some of the savings be recognized in a mandatory class action as an incentive to settlement? It is at least a legitimate question, which we leave for another day. V Our decision rests on a different basis from the ground of Justice Breyer's dissent, just as there was a difference in approach between majority and dissenters in The nub of our position is that we are bound to follow Rule 23 as we understood it upon its adoption, and that we are not free to alter it except through the process prescribed by Congress in the Rules Enabling Act. Although, as the dissent notes, post, at 882, the revised text adopted in 1966 was understood (somewhat cautiously) to authorize the courts to provide for class treatment of mass tort litigation, it was also *862 the Court's understanding that the Rule's growing edge for that purpose would be the opt-out class authorized by subdivision (b)(3), not the mandatory class under subdivision (b)(1)(B), see While we have not ruled out the possibility under the present Rule of a mandatory class to deal with mass tort litigation on a limited fund rationale, we are not free to dispense with the safeguards that have protected mandatory class members under that theory traditionally. Apart from its effect on the requirements of subdivision (a) as explained and held binding in the dissent would move the standards for mandatory actions in the direction of opt-out class requirements by according weight to this "unusual limited fund[`s] witching hour," post, at in exercising discretion over class certification. It is on this belief (that we should sustain the allowances made by the District Court in consideration of the exigencies of this settlement proceeding) that the dissent addresses each of the criteria for limited fund treatment (demonstrably insufficient fund, intraclass equity, and dedication of the entire fund, see post, at 873-883). As to the calculation of the fund, the dissent believes an independent valuation by the District Court may be dispensed with here in favor of the figure agreed upon by the settling parties. The dissent discounts the conflicts on the part of class counsel who negotiated the Global Settlement Agreement by arguing that the "relevant" settlement negotiation, and hence the relevant benchmark for judging the actual value of the insurance amount, was the negotiation between Fibreboard and the insurers that produced the Trilateral Settlement Agreement. See post, at 876. This argument, however, minimizes two facts: (1) that Fibreboard and the insurers made this separate, backup agreement only at the insistence of class counsel as a condition for reaching the Global Settlement Agreement; (2) even more important, that "[t]he Insurers were adamant that they would not agree *863 to pay any more in the context of a backup agreement than in a global agreement," a principle "Fibreboard acceded to" on the day the Global Settlement Agreement was announced "as the price of permitting an agreement to be reached with respect to a global settlement," Ahearn, 162 F. R. D., at 516. Under these circumstances the reliability of the Trilateral Settlement Agreement's figure is inadequate as an independent benchmark that might excuse the want of any independent judicial determination that the Global Settlement Agreement's fund was the maximum possible. In any event, the dissent says, it is not crucial whether a $30 claim has to settle for $15 or $20. But it is crucial. Conflict-free counsel, as required by Rule 23(a) and might have negotiated a $20 figure, and a limited fund rationale for mandatory class treatment of a settlement-only action requires assurance that claimants are receiving the maximum fund, not a potentially significant fraction less. With respect to the requirement of intraclass equity, the dissent argues that conflicts both within this certified class and between the class as certified and those excluded from it may be mitigated because separate counsel were simply not to be had in the short time that a settlement agreement was possible before the argument (or likely decision) in the coverage case. But this is to say that when the clock is about to strike midnight, a court considering class certification may lower the structural requirements of Rule 23(a) as declared in and the parallel equity requirements necessary to justify mandatory class treatment on a limited fund theory. Finally, the dissent would excuse Fibreboard's retention of virtually all its net worth, and the loss to members of the certified class of some 13 percent of the fund putatively available to them, on the ground that the settlement made more money available than any other effort would likely have done. But even if we could be certain that this evaluation were true, this is to reargue : the settlement's fairness *864 under Rule 23(e) does not dispense with the requirements of Rules 23(a) and (b). We believe that if an allowance for exigency can make a substantial difference in the level of Rule 23 scrutiny, the economic temptations at work on counsel in class actions will guarantee enough exigencies to take the law back before and unsettle the line between mandatory class actions under subdivision (b)(1)(B) and opt-out actions under subdivision (b)(3). VI In sum, the applicability of Rule 23(b)(1)(B) to a fund and plan purporting to liquidate actual and potential tort claims is subject to question, and its purported application in this case was in any event improper. The Advisory Committee did not envision mandatory class actions in cases like this one, and both the Rules Enabling Act and the policy of avoiding serious constitutional issues counsel against leniency in recognizing mandatory limited fund actions in circumstances markedly different from the traditional paradigm. Assuming, arguendo, that a mandatory, limited fund rationale could under some circumstances be applied to a settlement class of tort claimants, it would be essential that the fund be shown to be limited independently of the agreement of the parties to the action, and equally essential under Rules 23(a) and (b)(1)(B) that the class include all those with claims unsatisfied at the time of the settlement negotiations, with intraclass conflicts addressed by recognizing independently represented subclasses. In this case, the limit of the fund was determined by treating the settlement agreement as dispositive, an error magnified by the representation of class members by counsel also representing excluded plaintiffs, whose settlements would be funded fully upon settlement of the class action on any terms that could survive final fairness review. Those separate settlements, together with other exclusions from the claimant class, precluded adequate structural protection by subclass treatment, which was not even *865 afforded to the conflicting elements within the class as certified. The judgment of the Court of Appeals, accordingly, is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. |
Justice Brennan | majority | false | South Carolina v. Regan | 1984-02-22T00:00:00 | null | https://www.courtlistener.com/opinion/111104/south-carolina-v-regan/ | https://www.courtlistener.com/api/rest/v3/clusters/111104/ | 1,984 | 1983-039 | 2 | 9 | 0 | []
South Carolina invokes the Court's original jurisdiction[1] and asks leave to file a complaint against Donald T. Regan, the Secretary of the Treasury of the United States. The State seeks an injunction and other relief, on the ground that § 103(j)(1) of the Internal Revenue Code of 1954, 26 U.S. C. § 103(j)(1) (1982 ed.), as added by § 310(b)(1) of the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA), Pub. L. 97-248, 96 Stat. 596, is constitutionally invalid as violative of the Tenth Amendment and the doctrine of intergovernmental tax immunity.
The Secretary objects to the motion on the ground that the Anti-Injunction Act, 26 U.S. C. § 7421(a), bars this action[2] and, alternatively, that the Court should exercise its discretion to deny leave to file. We are not persuaded that either is a ground for denying the motion, and therefore grant the motion for leave to file the complaint.
I
Section 103(a) of the Internal Revenue Code (IRC) exempts from a taxpayer's gross income the interest earned on the obligations of any State.[3] In 1982, however, as part of *371 TEFRA, Congress amended § 103 to restrict the types of bonds that qualify for the tax exemption granted by that section. Specifically, § 310(b)(1) of TEFRA added a new provision, § 103(j)(1), to the Code. Section 103(j)(1) requires that certain obligations, termed "registration-required obligation[s]," be issued in registered,[4] rather than bearer, form to qualify for the § 103(a) exemption.[5] For purposes of § 103 (j)(1), registration-required obligations are defined broadly to include most publicly issued obligations with maturities greater than one year.[6] If an obligation that is registration-required is issued in bearer, rather than registered, form, then § 103(j)(1) provides that the interest on that obligation is taxable.
Because the imposition of a tax on bearer bonds would require a State to pay its bondholders a higher rate of interest on such bonds, South Carolina argues that the practical effect of § 103(j)(1) is to require it to issue its obligations in registered form. For that reason, South Carolina argues that the *372 section destroys its freedom to issue obligations in the form that it chooses. Viewing its borrowing power as essential to the maintenance of its separate and independent existence, South Carolina contends that the condition imposed by § 103 (j)(1) on the exercise of that power violates the Tenth Amendment. In addition, relying on Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429 (1895), South Carolina argues that Congress may not tax the interest earned on the obligations of a State. Because § 103(j)(1) imposes a tax on the interest earned on state obligations issued in bearer form, the State argues that the section is unconstitutional. Accordingly, South Carolina asks that its motion to file the complaint be granted and that this Court award declaratory, injunctive, and other appropriate relief.[7]
The Secretary does not address the merits of the State's constitutional claims. Rather, he argues that we may not grant the motion to file because this action is barred by the Anti-Injunction Act. The Act provides, in pertinent part, that "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed."[8] Characterizing this action as a suit to "restrai[n] the assessment or collection of" a tax, the Secretary contends that this suit is barred by the statute. The Secretary argues that Enochs v. Williams Packing & Navigation Co., 370 U.S. 1 (1962), establishes the single judicially created exception to the Act and that this action does not fall within that exception. We need not address *373 whether this case falls within the Williams Packing exception for we hold that the Act was not intended to bar an action where, as here, Congress has not provided the plaintiff with an alternative legal way to challenge the validity of a tax.[9]
II
When enacted in 1867, the forerunner of the current Anti-Injunction Act provided that "no suit for the purpose of restraining the assessment or collection of tax shall be maintained in any court." Act of Mar. 2, 1867, § 10, 14 Stat. 475.[10] Although the Act apparently has no recorded legislative history, Bob Jones University v. Simon, 416 U.S. 725, 736 (1974), the circumstances of its enactment strongly suggest that Congress intended the Act to bar a suit only in situations in which Congress had provided the aggrieved party with an alternative legal avenue by which to contest the legality of a particular tax.
The Act originated as an amendment to a statute that provided that
"[n]o suit shall be maintained in any court for the recovery of any tax alleged to have been erroneously or illegally assessed or collected, until appeal shall have been duly made to the commissioner of internal revenue . . . and a decision of said commissioner shall be had thereon, unless such suit shall be brought within six months from the time of said decision . . . ." Internal Revenue Act of July 13, 1866, § 19, 14 Stat. 152.
The Anti-Injunction Act amended this statute by adding the prohibition against injunctions. Act of Mar. 2, 1867, § 10, 14 *374 Stat. 475. The Act, therefore, prohibited injunctions in the context of a statutory scheme that provided an alternative remedy. As we explained in Snyder v. Marks, 109 U.S. 189, 193 (1883), "[t]he remedy of a suit to recover back the tax after it is paid is provided by statute, and a suit to restrain its collection is forbidden." This is cogent evidence that the 1867 amendment was merely intended to require taxpayers to litigate their claims in a designated proceeding.
The Secretary argues that, regardless of whether other remedies are available, a plaintiff may only sue to restrain the collection of taxes if it satisfies the narrow exception to the Act enunciated in Williams Packing, supra. Williams Packing did not, however, ever address, let alone decide, the question whether the Act applies when Congress has provided no alternative remedy. Indeed, as we shall see, a careful reading of Williams Packing and its progeny supports our conclusion that the Act was not intended to apply in the absence of such a remedy.
Williams Packing was a taxpayer's suit to enjoin the District Director of the Internal Revenue Service from collecting allegedly past-due social security and unemployment taxes. The Court concluded that the Anti-Injunction Act would not apply if the taxpayer (1) was certain to succeed on the merits, and (2) could demonstrate that collection would cause him irreparable harm. 370 U.S., at 6-7. Finding that the first condition had not been met, the Court concluded that the Act barred the suit. Significantly, however, Congress had provided the plaintiff in Williams Packing with the alternative remedy of a suit for a refund. Id., at 7.
In each of this Court's subsequent cases that have applied the Williams Packing rule, the plaintiff had the option of paying the tax and bringing a suit for a refund. Moreover, these cases make clear that the Court in Williams Packing and its progeny did not intend to decide whether the Act would apply to an aggrieved party who could not bring a suit for a refund.
*375 For example, in Bob Jones, supra, the taxpayer sought to prevent the Service from revoking its tax-exempt status under IRC § 501(c)(3). Because the suit would have restrained the collection of income taxes from the taxpayer and its contributors, as well as the collection of federal social security and unemployment taxes from the taxpayer, the Court concluded that the suit was an action to restrain "the assessment or collection of any tax" within the meaning of the Anti-Injunction Act. 416 U.S., at 738-739. Applying the Williams Packing test, the Court found that the Act barred the suit because the taxpayer failed to demonstrate that it was certain to succeed on the merits. 416 U.S., at 749. In rejecting the taxpayer's challenge to the Act on due process grounds, however, the Court relied on the availability of a refund suit, noting that "our conclusion might well be different" if the aggrieved party had no access to judicial review. Id., at 746. Similarly, the Court left open the question whether the Due Process Clause would be satisfied if an organization had to rely on a "friendly donor" to obtain judicial review of the Service's revocation of its tax exemption. Id., at 747, n. 21.[11]
In addition, in Alexander v. "Americans United" Inc., 416 U.S. 752 (1974), decided the same day as Bob Jones, the Court considered a taxpayer's action to require the Service to reinstate its tax-exempt status.[12] The Court applied the Williams Packing test and held that the action was barred *376 by the Act. Finally, in United States v. American Friends Service Committee, 419 U.S. 7 (1974) (per curiam), the taxpayers sought to enjoin the Government from requiring that a portion of their wages be withheld. The taxpayers argued that the withholding provisions violated their First Amendment right to bear witness to their religious beliefs. The Court again applied the Williams Packing rule and found that the suit was barred by the Anti-Injunction Act. In both of these cases, the taxpayers argued that the Williams Packing test was irrelevant and the Act inapplicable because they did not have adequate alternative remedies. In rejecting this argument, the Court expressly relied on the availability of refund suits. 416 U.S., at 761; 419 U. S., at 11. This emphasis on alternative remedies would have been irrelevant had the Court meant to decide that the Act applied in the absence of such remedies. We therefore turn to that question.
The analysis in Williams Packing and its progeny of the purposes of the Act provides significant support for our holding today. Williams Packing expressly stated that the Act was intended to protect tax revenues from judicial interference "and to require that the legal right to the disputed sums be determined in a suit for refund." 370 U. S., at 7 (emphasis added). Similarly, the Court concluded that the Act was also designed as "protection of the collector from litigation pending a suit for refund," id., at 7-8 (emphasis added). The Court's concerns with protecting the expeditious collection of revenue and protecting the collector from litigation were expressed in the context of a procedure that afforded the taxpayer the remedy of a refund suit.[13]
Nor is our conclusion inconsistent with the 1966 amendment to the Anti-Injunction Act. In 1966, in § 110(c) of the Federal Tax Lien Act, Pub. L. 89-719, 80 Stat. 1144, Congress amended the Anti-Injunction Act to read, in pertinent *377 part, that "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed." Ibid. The central focus of the added phrase, "by any person, whether or not such person is the person against whom such tax was assessed," was on third parties whose property rights competed with federal tax liens. Bob Jones, 416 U. S., at 732, n. 6. Prior to the adoption of the Tax Lien Act, such parties were often unable to protect their property interests. Ibid.; H. R. Rep. No. 1884, 89th Cong., 2d Sess., 27-28 (1966).[14] Section 110(a) of the Tax Lien Act gave such third parties a right of action against the United States.[15] The amendment to the Anti-Injunction Act was primarily designed to insure that the right of action granted by § 110(a) of the Federal Tax Lien Act was exclusive. 416 U.S., at 732, n. 6. The language added to the Anti-Injunction Act by the 1966 amendment is, therefore, largely irrelevant to the issue before us today.[16]
*378 In sum, the Anti-Injunction Act's purpose and the circumstances of its enactment indicate that Congress did not intend the Act to apply to actions brought by aggrieved parties for whom it has not provided an alternative remedy.[17] In this *379 case, if the plaintiff South Carolina issues bearer bonds, its bondholders will, by virtue of § 103(j)(1), be liable for the tax on the interest earned on those bonds. South Carolina will *380 incur no tax liability. Under these circumstances, the State will be unable to utilize any statutory procedure to contest the constitutionality of § 103(j)(1). Accordingly, the Act cannot bar this action.
The Secretary suggests that the State may obtain judicial review of its claims by issuing bearer bonds and urging a purchaser of those bonds to bring a suit contesting the legality of § 103(j)(1). But the nature of this proposed remedy only buttresses our conclusion that the Act was not intended to apply to this kind of action. First, instances in which a third party may raise the constitutional rights of another are the exception rather than the rule. Singleton v. Wulff, 428 U.S. 106, 114 (1976). More important, to make use of this remedy the State "must first be able to find [an individual] willing to subject himself to the rigors of litigation against the Service, and then must rely on [him] to present the relevant arguments on [its] behalf." Bob Jones, 416 U. S., at 747, n. 21. Because it is by no means certain that the State would be able to convince a taxpayer to raise its claims,[18] reliance on the remedy suggested by the Secretary would create *381 the risk that the Anti-Injunction Act would entirely deprive the State of any opportunity to obtain review of its claims. For these reasons, we should not lightly attribute to Congress an intent to require plaintiff to find a third party to contest its claims. Here, the indicia of congressional intent the Act's purposes and the circumstances of its enactment demonstrate that Congress did not intend the Act to apply where an aggrieved party would be required to depend on the mere possibility of persuading a third party to assert his claims. Rather, the Act was intended to apply only when Congress has provided an alternative avenue for an aggrieved party to litigate its claims on its own behalf.[19] Because Congress did not prescribe an alternative remedy for the plaintiff in this case, the Act does not bar this suit.
III
The Secretary argues that if we conclude that the Anti-Injunction Act is not a bar to this suit, we should in any event exercise our discretion to deny leave to file. He notes that the Court's jurisdiction over this suit is not exclusive and that the Court exercises its "original jurisdiction sparingly and [is] particularly reluctant to take jurisdiction of a suit where the *382A plaintiff has another adequate forum in which to settle his claim." United States v. Nevada, 412 U.S. 534, 538 (1973) (per curiam). The State has, however, alleged that the application of § 103(j)(1) will "materially interfere with and infringe upon the authority of South Carolina to borrow funds." Motion for Leave to File Complaint 16; see supra, at 371-372. Additionally, 24 States have jointly submitted an amicus brief urging this Court to grant the motion to file. Unquestionably, the manner in which a State may exercise its borrowing power is a question that is of vital importance to all 50 States. Under these circumstances, we believe that it is appropriate for us to exercise our discretion in favor of hearing this case. At present, however, the record is not sufficiently developed to permit us to address the merits. We shall therefore appoint a Special Master to develop the record.
Accordingly, plaintiff's motion for leave to file a complaint is granted and a Special Master will be appointed.
It is so ordered.
*382B JUSTICE BLACKMUN, concurring in the judgment. | [] South Carolina invokes the Court's original jurisdiction[1] and asks leave to file a complaint against Donald T. Regan, the Secretary of the Treasury of the United States. The State seeks an injunction and other relief, on the ground that 103(j)(1) of the Internal Revenue Code of 1954, 26 U.S. C. 103(j)(1) (1982 ed.), as added by 310(b)(1) of the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA), Stat. 596, is constitutionally invalid as violative of the Tenth Amendment and the doctrine of intergovernmental tax immunity. The Secretary objects to the motion on the ground that the Anti-Injunction Act, 26 U.S. C. 7421(a), bars this action[2] and, alternatively, that the Court should exercise its discretion to deny leave to file. We are not persuaded that either is a ground for denying the motion, and therefore grant the motion for leave to file the complaint. I Section 103(a) of the Internal Revenue Code (IRC) exempts from a taxpayer's gross income the interest earned on the obligations of any State.[3] In 1982, however, as part of *371 TEFRA, Congress amended 103 to restrict the types of bonds that qualify for the tax exemption granted by that section. Specifically, 310(b)(1) of TEFRA added a new provision, 103(j)(1), to the Code. Section 103(j)(1) requires that certain obligations, termed "registration-required obligation[s]," be issued in registered,[4] rather than bearer, form to qualify for the 103(a) exemption.[5] For purposes of 103 (j)(1), registration-required obligations are defined broadly to include most publicly issued obligations with maturities greater than one year.[6] If an obligation that is registration-required is issued in bearer, rather than registered, form, then 103(j)(1) provides that the interest on that obligation is taxable. Because the imposition of a tax on bearer bonds would require a State to pay its bondholders a higher rate of interest on such bonds, South Carolina argues that the practical effect of 103(j)(1) is to require it to issue its obligations in registered form. For that reason, South Carolina argues that the *372 section destroys its freedom to issue obligations in the form that it chooses. Viewing its borrowing power as essential to the maintenance of its separate and independent existence, South Carolina contends that the condition imposed by 103 (j)(1) on the exercise of that power violates the Tenth Amendment. In addition, relying on South Carolina argues that Congress may not tax the interest earned on the obligations of a State. Because 103(j)(1) imposes a tax on the interest earned on state obligations issued in bearer form, the State argues that the section is unconstitutional. Accordingly, South Carolina asks that its motion to file the complaint be granted and that this Court award declaratory, injunctive, and other appropriate relief.[7] The Secretary does not address the merits of the State's constitutional claims. Rather, he argues that we may not grant the motion to file because this action is barred by the Anti-Injunction The Act provides, in pertinent part, that "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed."[8] Characterizing this action as a suit to "restrai[n] the assessment or collection of" a tax, the Secretary contends that this suit is barred by the statute. The Secretary argues that establishes the single judicially created exception to the Act and that this action does not fall within that exception. We need not address *373 whether this case falls within the Williams exception for we hold that the Act was not intended to bar an action where, as here, Congress has not provided the plaintiff with an alternative legal way to challenge the validity of a tax.[9] II When enacted in 1867, the forerunner of the current Anti-Injunction Act provided that "no suit for the purpose of restraining the assessment or collection of tax shall be maintained in any court." Act of Mar. 2, 1867, 10,[10] Although the Act apparently has no recorded legislative history, Bob the circumstances of its enactment strongly suggest that Congress intended the Act to bar a suit only in situations in which Congress had provided the aggrieved party with an alternative legal avenue by which to contest the legality of a particular tax. The Act originated as an amendment to a statute that provided that "[n]o suit shall be maintained in any court for the recovery of any tax alleged to have been erroneously or illegally assessed or collected, until appeal shall have been duly made to the commissioner of internal revenue and a decision of said commissioner shall be had thereon, unless such suit shall be brought within six months from the time of said decision" Internal Revenue Act of July 13, 1866, 19, The Anti-Injunction Act amended this statute by adding the prohibition against injunctions. Act of Mar. 2, 1867, 10, 14 *. The Act, therefore, prohibited injunctions in the context of a statutory scheme that provided an alternative remedy. As we explained in "[t]he remedy of a suit to recover back the tax after it is paid is provided by statute, and a suit to restrain its collection is forbidden." This is cogent evidence that the 1867 amendment was merely intended to require taxpayers to litigate their claims in a designated proceeding. The Secretary argues that, regardless of whether other remedies are available, a plaintiff may only sue to restrain the collection of taxes if it satisfies the narrow exception to the Act enunciated in Williams Williams did not, however, ever address, let alone decide, the question whether the Act applies when Congress has provided no alternative remedy. Indeed, as we shall see, a careful reading of Williams and its progeny supports our conclusion that the Act was not intended to apply in the absence of such a remedy. Williams was a taxpayer's suit to enjoin the District Director of the Internal Revenue Service from collecting allegedly past-due social security and unemployment taxes. The Court concluded that the Anti-Injunction Act would not apply if the taxpayer (1) was certain to succeed on the merits, and (2) could demonstrate that collection would cause him irreparable -7. Finding that the first condition had not been met, the Court concluded that the Act barred the suit. Significantly, however, Congress had provided the plaintiff in Williams with the alternative remedy of a suit for a refund. In each of this Court's subsequent cases that have applied the Williams rule, the plaintiff had the option of paying the tax and bringing a suit for a refund. Moreover, these cases make clear that the Court in Williams and its progeny did not intend to decide whether the Act would apply to an aggrieved party who could not bring a suit for a refund. *375 For example, in Bob the taxpayer sought to prevent the Service from revoking its tax-exempt status under IRC 501(c)(3). Because the suit would have restrained the collection of income taxes from the taxpayer and its contributors, as well as the collection of federal social security and unemployment taxes from the taxpayer, the Court concluded that the suit was an action to restrain "the assessment or collection of any tax" within the meaning of the Anti-Injunction 416 U.S., 38-739. Applying the Williams test, the Court found that the Act barred the suit because the taxpayer failed to demonstrate that it was certain to succeed on the 416 U.S., 49. In rejecting the taxpayer's challenge to the Act on due process grounds, however, the Court relied on the availability of a refund suit, noting that "our conclusion might well be different" if the aggrieved party had no access to judicial review. 46. Similarly, the Court left open the question whether the Due Process Clause would be satisfied if an organization had to rely on a "friendly donor" to obtain judicial review of the Service's revocation of its tax exemption. 47, n. 21.[11] In addition, in decided the same day as Bob the Court considered a taxpayer's action to require the Service to reinstate its tax-exempt status.[12] The Court applied the Williams test and held that the action was barred *376 by the Finally, in United the taxpayers sought to enjoin the Government from requiring that a portion of their wages be withheld. The taxpayers argued that the withholding provisions violated their First Amendment right to bear witness to their religious beliefs. The Court again applied the Williams rule and found that the suit was barred by the Anti-Injunction In both of these cases, the taxpayers argued that the Williams test was irrelevant and the Act inapplicable because they did not have adequate alternative remedies. In rejecting this argument, the Court expressly relied on the availability of refund 416 U.S., 61; This emphasis on alternative remedies would have been irrelevant had the Court meant to decide that the Act applied in the absence of such remedies. We therefore turn to that question. The analysis in Williams and its progeny of the purposes of the Act provides significant support for our holding today. Williams expressly stated that the Act was intended to protect tax revenues from judicial interference "and to require that the legal right to the disputed sums be determined in a suit for refund." 370 U. S., Similarly, the Court concluded that the Act was also designed as "protection of the collector from litigation pending a suit for refund," -8 The Court's concerns with protecting the expeditious collection of revenue and protecting the collector from litigation were expressed in the context of a procedure that afforded the taxpayer the remedy of a refund suit.[13] Nor is our conclusion inconsistent with the 1966 amendment to the Anti-Injunction In 1966, in 110(c) of the Federal Tax Lien Act, Stat. 4, Congress amended the Anti-Injunction Act to read, in pertinent *377 part, that "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed." The central focus of the added phrase, "by any person, whether or not such person is the person against whom such tax was assessed," was on third parties whose property rights competed with federal tax liens. Bob 416 U. S., 32, n. 6. Prior to the adoption of the Tax Lien Act, such parties were often unable to protect their property interests. ; H. R. Rep. No. 1884, 89th Cong., 2d Sess., 27-28 (1966).[14] Section 110(a) of the Tax Lien Act gave such third parties a right of action against the United States.[15] The amendment to the Anti-Injunction Act was primarily designed to insure that the right of action granted by 110(a) of the Federal Tax Lien Act was 416 U.S., 32, n. 6. The language added to the Anti-Injunction Act by the 1966 amendment is, therefore, largely irrelevant to the issue before us today.[16] *378 In sum, the Anti-Injunction Act's purpose and the circumstances of its enactment indicate that Congress did not intend the Act to apply to actions brought by aggrieved parties for whom it has not provided an alternative remedy.[17] In this *379 case, if the plaintiff South Carolina issues bearer bonds, its bondholders will, by virtue of 103(j)(1), be liable for the tax on the interest earned on those bonds. South Carolina will *380 incur no tax liability. Under these circumstances, the State will be unable to utilize any statutory procedure to contest the constitutionality of 103(j)(1). Accordingly, the Act cannot bar this action. The Secretary suggests that the State may obtain judicial review of its claims by issuing bearer bonds and urging a purchaser of those bonds to bring a suit contesting the legality of 103(j)(1). But the nature of this proposed remedy only buttresses our conclusion that the Act was not intended to apply to this kind of action. First, instances in which a third party may raise the constitutional rights of another are the exception rather than the rule. More important, to make use of this remedy the State "must first be able to find [an individual] willing to subject himself to the rigors of litigation against the Service, and then must rely on [him] to present the relevant arguments on [its] behalf." Bob 416 U. S., 47, n. 21. Because it is by no means certain that the State would be able to convince a taxpayer to raise its claims,[18] reliance on the remedy suggested by the Secretary would create *381 the risk that the Anti-Injunction Act would entirely deprive the State of any opportunity to obtain review of its claims. For these reasons, we should not lightly attribute to Congress an intent to require plaintiff to find a third party to contest its claims. Here, the indicia of congressional intent the Act's purposes and the circumstances of its enactment demonstrate that Congress did not intend the Act to apply where an aggrieved party would be required to depend on the mere possibility of persuading a third party to assert his claims. Rather, the Act was intended to apply only when Congress has provided an alternative avenue for an aggrieved party to litigate its claims on its own behalf.[19] Because Congress did not prescribe an alternative remedy for the plaintiff in this case, the Act does not bar this suit. III The Secretary argues that if we conclude that the Anti-Injunction Act is not a bar to this suit, we should in any event exercise our discretion to deny leave to file. He notes that the Court's jurisdiction over this suit is not exclusive and that the Court exercises its "original jurisdiction sparingly and [is] particularly reluctant to take jurisdiction of a suit where the *382A plaintiff has another adequate forum in which to settle his claim." United The State has, however, alleged that the application of 103(j)(1) will "materially interfere with and infringe upon the authority of South Carolina to borrow funds." Motion for Leave to File Complaint 16; see Additionally, 24 States have jointly submitted an amicus brief urging this Court to grant the motion to file. Unquestionably, the manner in which a State may exercise its borrowing power is a question that is of vital importance to all 50 States. Under these circumstances, we believe that it is appropriate for us to exercise our discretion in favor of hearing this case. At present, however, the record is not sufficiently developed to permit us to address the We shall therefore appoint a Special Master to develop the record. Accordingly, plaintiff's motion for leave to file a complaint is granted and a Special Master will be appointed. It is so ordered. *382B JUSTICE BLACKMUN, concurring in the judgment. |
Justice Blackmun | dissenting | false | New Jersey v. Portash | 1979-03-20T00:00:00 | null | https://www.courtlistener.com/opinion/110038/new-jersey-v-portash/ | https://www.courtlistener.com/api/rest/v3/clusters/110038/ | 1,979 | 1978-058 | 2 | 7 | 2 | The Court in this case reaches out to decide an important constitutional question even though that question is presented in the context of an abstract dispute over a hypothetical ruling of the trial court. For me, the facts present too remote and speculative an injury to federally protected rights to support the exercise of jurisdiction by this Court. Indeed, *464 examination of the record reveals for me that the Court decides today a question different from the one the trial court considered. This demonstrates how far afield we range when we cut loose from the requirement that only concrete disputes may be decided by this Court. Because I believe the Court is without authority to engage in this type of abstract adjudication of constitutional rights in a factual vacuum, I dissent.
Prior to trial, and again at the close of the State's evidence, respondent Portash attempted to obtain an advance evidentiary ruling from the trial court. Though the precise nature of the ruling respondent sought is a matter of dispute, it related generally to whether and to what extent the State would be permitted to use, during cross-examination of respondent and in the rebuttal phase of its own case, information supplied by respondent under the statutory grant of immunity. When respondent failed to obtain a ruling he considered satisfactory, he refrained from testifying in his own behalf. Accordingly, he did not take the stand at the trial. He was not cross-examined. He gave no answer determined by the trial court to be materially inconsistent with any prior immunized statement on a relevant issue. The State did not seek to impeach him through use of immunized testimony. And the trial court did not rule that the State could do so in response to an inconsistent answer, or that the State could otherwise make use of immunized testimony at trial. In short, because of his failure to take the stand, respondent was never incriminated through the use of the testimony he previously had supplied under the immunity grant.
Even so, the Court takes jurisdiction over this dispute and decides the merits of respondent's claim that it would have constituted a violation of his right under the Fifth and Fourteenth Amendments to be free from compelled self-incrimination had the State used immunized testimony to impeach him, assuming, of course, that he would have taken the stand, *465 that he would have given materially inconsistent answers to relevant questions, and that the State would have chosen to impeach him with prior immunized testimony. The Court justifies this assertion of jurisdiction, over the State's objection that the dispute is only hypothetical, by announcing that the New Jersey courts decided the issue and held it to be properly presented on appeal. Citing cases such as Raley v. Ohio, 360 U.S. 423 (1959), and Jenkins v. Georgia, 418 U.S. 153 (1974), ante, at 455, the Court holds that New Jersey's determination that the federal issue properly has been presented is sufficient to allow this Court to decide the issue, notwithstanding respondent's failure to take the stand. "[T]here is nothing in federal law to prohibit New Jersey from following such a procedure," the Court holds, "or, so long as the `case or controversy' requirement of Art. III is met, to foreclose our consideration of the substantive constitutional issue now that the New Jersey courts have decided it." Ibid.
But the State's objection, as I understand it, goes not to whether the federal issue properly was presented in the state courts, but to whether, in light of respondent's failure to testify, the alleged claim is too remote and speculative to support jurisdiction here. As such, resolution of the State's objection turns not on the determination that the New Jersey courts recognized the federal issue as properly presented, but on the determination that there is indeed a federal issue in the case. And this latter determination depends upon whether, as a matter of federal law, there is a sufficiently concrete controversy over the scope of a federal right to support the exercise of jurisdiction by this Court.
The Court tacitly recognizes this, I take it, by conceding, ante, at 455-456, that the "case or controversy" requirement of Art. III must be met and by its citation of Brooks v. Tennessee, 406 U.S. 605 (1972). For in Brooks, the dissenters argued that since the defendant had not taken the stand, his right *466 to be free from compelled self-incrimination had not been infringed, and therefore the defendant had not presented the Court with any federal issue "bearing on the privilege against self-incrimination." Id., at 617. The Court answered that argument by saying that the Tennessee statute in issue imposed a burden on the right to remain silent by penalizing a defendant who asserted that right at the start of his case, and "that penalty constitute[d] the infringement of the right." Id., at 611 n. 6. Thus, in Brooks, the Court found that there was a federal issue presented even though the defendant had not taken the stand, since it was the exercise of the right not to testify that the State burdened.
As in Brooks, the Court here must believe that there was some infringement of a federal right sufficient to establish a concrete controversy capable of supporting its jurisdiction. But, unlike in Brooks, the Court takes care to omit any mention of what federal right was infringed by the hypothetical "ruling" of the trial court. It simply says that New Jersey recognized the issue as having been presented, intimates that the case is within Art. III's case-or-controversy requirement, and proceeds to the merits.
What federal right it is that the "ruling" of the trial court infringed is not easy to ascertain. It would not appear that the right to remain silent, at issue in Brooks, was burdened, since respondent asserted that right without suffering any penalty for doing so. Nor did the hypothetical ruling compel respondent to incriminate himself to impeachment by use to take the stand and subject himself to impeachment by use of the immunized testimony. Respondent argues that it was his right to testify in his own behalf that the trial court infringed by threatening him with the possibility that, if he were to testify and if he were to give materially inconsistent answers to relevant questions, the court would permit the State to impeach respondent with his immunized testimony, if the State could do so. This threat, respondent now argues, deterred him from taking the stand in his own behalf, and *467 thereby constituted an unconstitutional infringement of his right to testify. Brief for Respondent 13.
This appears to be the theory that the Appellate Division proceeded upon, see 151 N. J. Super. 200, 204, 209, 376 A.2d 950, 952, 955, and it appears to be the most plausible reasoning upon which one could conclude that this case involves an actual, and not hypothetical, invasion of federal rights. As such, the Court today sub silentio decides as a matter of federal law that the hypothetical ruling by a state court that it would permit impeachment with immunized testimony in certain circumstances not yet come to pass creates a sufficient infringement on the right to testify as to create a controversy capable of being adjudicated here.
But this claimed burden on the right to testify is too speculative to support the exercise of jurisdiction by this Court over the ultimate dispute concerning the use of immunized testimony. On this record, we cannot tell whether respondent would have taken the stand even had he obtained the ruling he sought from the trial court. The decision by a criminal defendant to testify is often the most important decision he faces in the trial, and it seldom turns on the resolution of one factor among many. Even had respondent taken the stand, there is no assurance he would have given inconsistent answers to questions. Indeed, respondent vigorously has argued, in this Court and in the state courts, that he would not have testified in any manner inconsistently with his immunized testimony. Moreover, even had inconsistent answers been given, the trial court would have had to determine whether the answers were offered in response to relevant and material questions before it would have permitted impeachment. And even then, there is no certainty that the State actually would have sought to use immunized materials to impeach respondent.
In these circumstances, I would hold the dispute as to the use of the immunized testimony to be too remote and speculative to enable this Court to adjudicate it. Cf. Laird *468 v. Tatum, 408 U.S. 1 (1972). By finding sufficient controversy to exist in this case to reach the federal issue, the Court exercises jurisdiction over an abstract dispute of no concrete significance, and as a result renders an advisory opinion, informing respondent what the State would have been permitted to do or not do had respondent ever taken the stand.
I find this adjudication of an abstract dispute not only to be beyond the jurisdiction of the Court but to be unwise as well. At a minimum, as our Brother POWELL notes, ante, at 462, a requirement that such a claim be adjudicated on appeal only when presented by a defendant who has taken the stand prevents a defendant from manufacturing constitutional challenges when he has no intention of taking the stand and testifying in his own behalf. More fundamentally, such disembodied decisionmaking removes disputes from the factual and often legal context that sharpens issues, highlights problem areas of special concern, and, above all, gives a reviewing court some notion of the practical reach of its pronouncements.
Indeed, my examination of the record in this case makes me suspect that in adjudicating an abstract and academic legal question the Court has affirmed the reversal of respondent's conviction on the basis of an issue not even argued by respondent at the trial level in his attempt to obtain an advance ruling from the trial court. It is clear to me that the possible use of immunized testimony to impeach respondent was not at all respondent's concern before the trial court. At the pretrial hearing respondent's counsel conceded that if respondent gave materially inconsistent answers, he could be impeached with the grand jury testimony or prosecuted for perjury. App. 144a. Rather, respondent was attempting to obtain an advance ruling from the trial court that the State could not rely on information gathered from respondent's immunized testimony in formulating questions for respondent's on cross-examination. His argument to the trial court was that unless the State could show that it discovered the information *469 that formed the basis of its questions from a source independent of his immunized testimony, the Fifth Amendment prohibited the State from asking those questions. And it was in reliance on the trial court's ruling that it would not decide in advance on this requestbut would wait until each question was asked to consider this objectionthat respondent refused to take the stand.
The record at almost every point supports this interpretation of what it was that respondent sought from the trial court. For example, in the course of conceding that respondent properly would be subject to impeachment with the grand jury testimony if he gave answers at trial materially inconsistent with that testimony, respondent's counsel stated that he "merely want[ed] a ruling from the Court that, unless the door is opened, that they are not permitted to use any of [the immunized testimony] by way of cross examination, by way of rebuttal, or by way of cross examination of any of our witnesses, with the one limitation, that I think is inherent, is that except in the event of perjury" (emphasis added). App. 146a. See id., at 143a-148a.
Similarly, when counsel renewed this argument at the close of the State's evidence, the record reveals that his concern was not with impeachment, but with the use of the immunized testimony as a basis for asking questions. Thus, counsel argued that what the immunity statute proscribed was "use [of] the fruits of his testimony to cross examine him in his testimony." Id., at 203a.[1]
*470 Concededly, in the passage the Court quotes, ante, at 454-455, the trial court stated that if respondent gave materially inconsistent answers, it would permit impeachment with the immunized testimony. But an examination of the entire discussion from which that quotation is lifted makes it clear that respondent was not seeking a ruling as to impeachment for inconsistent statements, but a limitation on the scope of cross-examination. Thus, just before the quoted exchange, respondent's counsel assured the trial court that "the direct examination will in no way be inconsistent with his grand jury [immunized] testimony," App. 220a, but that the problem concerned the use of "consistent grand jury testimony which is incriminating to convict the man on the stand." Ibid. And immediately after the passage upon which the Court relies, respondent waved off the impeachment issue and stated that the problem that concerned him was the use by the State of information obtained from the immunized testimony to force respondent to give answers on the stand that would incriminate him.[2]
The trial court refused to rule in advance on this attempt to limit cross-examination, and it was this refusal that respondent claimed prompted his refusal to testify. Id., at 243a. Before the Appellate Division, however, the dispute was transmuted into one over the ability of the State to impeach respondent with the immunized testimony. It was on that issue that the conviction was reversed. And it is on *471 that issue that this Court affirms that reversal. Thus, because the Court reaches out to decide a theoretical legal question presented in an abstract setting, it permits respondent to obtain a favorable ruling from this Court on an issue of federal law that he did not assert in the trial court, and that did not form the basis for his refusing to testify in that court. And I assume respondent will be free at a new trial to renew his original argument, that the State is forbidden to use what it learned from the immunized testimony in formulating questions on cross-examination. This illustrates, I think, the problems the Court will encounter in every case in which it abandons the requirement that such an issue be presented for resolution only in the context of a concrete dispute about its actual operation at trial.
If this case presented simply the question whether state law had viewed the federal issue as properly presented, I could understand better the Court's desire to reach the federal issue. But though a State may decide whether a federal issue actually present in the case properly was brought to the attention of its own courts for adjudication, e. g., Raley v. Ohio, 360 U.S. 423 (1959), it never should transform an abstract dispute about a federal constitutional right into a case or controversy capable of being adjudicated in this Court simply by deciding that federal issue. Doremus v. Board of Education, 342 U.S. 429, 434-435 (1952). Otherwise, a State, by ruling on a purely hypothetical legal question in the context of reviewing a criminal conviction, could confer Art. III jurisdiction on this Court where the facts do not support the existence of a case or controversy.
I would require that respondent take the stand and actually assert the rights he seeks to vindicate in the context of an actual attempt by the State to use the immunized testimony. Because the Court does not require this, I dissent.
| The Court in this case reaches out to decide an important constitutional question even though that question is presented in the context of an abstract dispute over a hypothetical ruling of the trial court. For me, the facts present too remote and speculative an injury to federally protected rights to support the exercise of jurisdiction by this Court. Indeed, *464 examination of the record reveals for me that the Court decides today a question different from the one the trial court considered. This demonstrates how far afield we range when we cut loose from the requirement that only concrete disputes may be decided by this Court. Because I believe the Court is without authority to engage in this type of abstract adjudication of constitutional rights in a factual vacuum, I dissent. Prior to trial, and again at the close of the State's evidence, respondent Portash attempted to obtain an advance evidentiary ruling from the trial court. Though the precise nature of the ruling respondent sought is a matter of dispute, it related generally to whether and to what extent the State would be permitted to use, during cross-examination of respondent and in the rebuttal phase of its own case, information supplied by respondent under the statutory grant of immunity. When respondent failed to obtain a ruling he considered satisfactory, he refrained from testifying in his own behalf. Accordingly, he did not take the stand at the trial. He was not cross-examined. He gave no answer determined by the trial court to be materially inconsistent with any prior immunized statement on a relevant issue. The State did not seek to impeach him through use of immunized testimony. And the trial court did not rule that the State could do so in response to an inconsistent answer, or that the State could otherwise make use of immunized testimony at trial. In short, because of his failure to take the stand, respondent was never incriminated through the use of the testimony he previously had supplied under the immunity grant. Even so, the Court takes jurisdiction over this dispute and decides the merits of respondent's claim that it would have constituted a violation of his right under the Fifth and Fourteenth Amendments to be free from compelled self-incrimination had the State used immunized testimony to impeach him, assuming, of course, that he would have taken the stand, *465 that he would have given materially inconsistent answers to relevant questions, and that the State would have chosen to impeach him with prior immunized testimony. The Court justifies this assertion of jurisdiction, over the State's objection that the dispute is only hypothetical, by announcing that the New Jersey courts decided the issue and held it to be properly presented on appeal. Citing cases such as and ante, at 455, the Court holds that New Jersey's determination that the federal issue properly has been presented is sufficient to allow this Court to decide the issue, notwithstanding respondent's failure to take the stand. "[T]here is nothing in federal law to prohibit New Jersey from following such a procedure," the Court holds, "or, so long as the `case or controversy' requirement of Art. III is met, to foreclose our consideration of the substantive constitutional issue now that the New Jersey courts have decided it." But the State's objection, as I understand it, goes not to whether the federal issue properly was presented in the state courts, but to whether, in light of respondent's failure to testify, the alleged claim is too remote and speculative to support jurisdiction here. As such, resolution of the State's objection turns not on the determination that the New Jersey courts recognized the federal issue as properly presented, but on the determination that there is indeed a federal issue in the case. And this latter determination depends upon whether, as a matter of federal law, there is a sufficiently concrete controversy over the scope of a federal right to support the exercise of jurisdiction by this Court. The Court tacitly recognizes this, I take it, by conceding, ante, at 455-456, that the "case or controversy" requirement of Art. III must be met and by its citation of For in Brooks, the dissenters argued that since the defendant had not taken the stand, his right *466 to be free from compelled self-incrimination had not been infringed, and therefore the defendant had not presented the Court with any federal issue "bearing on the privilege against self-incrimination." The Court answered that argument by saying that the Tennessee statute in issue imposed a burden on the right to remain silent by penalizing a defendant who asserted that right at the start of his case, and "that penalty constitute[d] the infringement of the right." at 611 n. 6. Thus, in Brooks, the Court found that there was a federal issue presented even though the defendant had not taken the stand, since it was the exercise of the right not to testify that the State burdened. As in Brooks, the Court here must believe that there was some infringement of a federal right sufficient to establish a concrete controversy capable of supporting its jurisdiction. But, unlike in Brooks, the Court takes care to omit any mention of what federal right was infringed by the hypothetical "ruling" of the trial court. It simply says that New Jersey recognized the issue as having been presented, intimates that the case is within Art. III's case-or-controversy requirement, and proceeds to the merits. What federal right it is that the "ruling" of the trial court infringed is not easy to ascertain. It would not appear that the right to remain silent, at issue in Brooks, was burdened, since respondent asserted that right without suffering any penalty for doing so. Nor did the hypothetical ruling compel respondent to incriminate himself to impeachment by use to take the stand and subject himself to impeachment by use of the immunized testimony. Respondent argues that it was his right to testify in his own behalf that the trial court infringed by threatening him with the possibility that, if he were to testify and if he were to give materially inconsistent answers to relevant questions, the court would permit the State to impeach respondent with his immunized testimony, if the State could do so. This threat, respondent now argues, deterred him from taking the stand in his own behalf, and *467 thereby constituted an unconstitutional infringement of his right to testify. Brief for Respondent 13. This appears to be the theory that the Appellate Division proceeded upon, see 151 N. J. Super. 200, 204, 209, and it appears to be the most plausible reasoning upon which one could conclude that this case involves an actual, and not hypothetical, invasion of federal rights. As such, the Court today sub silentio decides as a matter of federal law that the hypothetical ruling by a state court that it would permit impeachment with immunized testimony in certain circumstances not yet come to pass creates a sufficient infringement on the right to testify as to create a controversy capable of being adjudicated here. But this claimed burden on the right to testify is too speculative to support the exercise of jurisdiction by this Court over the ultimate dispute concerning the use of immunized testimony. On this record, we cannot tell whether respondent would have taken the stand even had he obtained the ruling he sought from the trial court. The decision by a criminal defendant to testify is often the most important decision he faces in the trial, and it seldom turns on the resolution of one factor among many. Even had respondent taken the stand, there is no assurance he would have given inconsistent answers to questions. Indeed, respondent vigorously has argued, in this Court and in the state courts, that he would not have testified in any manner inconsistently with his immunized testimony. Moreover, even had inconsistent answers been given, the trial court would have had to determine whether the answers were offered in response to relevant and material questions before it would have permitted impeachment. And even then, there is no certainty that the State actually would have sought to use immunized materials to impeach respondent. In these circumstances, I would hold the dispute as to the use of the immunized testimony to be too remote and speculative to enable this Court to adjudicate it. Cf. Laird By finding sufficient controversy to exist in this case to reach the federal issue, the Court exercises jurisdiction over an abstract dispute of no concrete significance, and as a result renders an advisory opinion, informing respondent what the State would have been permitted to do or not do had respondent ever taken the stand. I find this adjudication of an abstract dispute not only to be beyond the jurisdiction of the Court but to be unwise as well. At a minimum, as our Brother POWELL notes, ante, at 462, a requirement that such a claim be adjudicated on appeal only when presented by a defendant who has taken the stand prevents a defendant from manufacturing constitutional challenges when he has no intention of taking the stand and testifying in his own behalf. More fundamentally, such disembodied decisionmaking removes disputes from the factual and often legal context that sharpens issues, highlights problem areas of special concern, and, above all, gives a reviewing court some notion of the practical reach of its pronouncements. Indeed, my examination of the record in this case makes me suspect that in adjudicating an abstract and academic legal question the Court has affirmed the reversal of respondent's conviction on the basis of an issue not even argued by respondent at the trial level in his attempt to obtain an advance ruling from the trial court. It is clear to me that the possible use of immunized testimony to impeach respondent was not at all respondent's concern before the trial court. At the pretrial hearing respondent's counsel conceded that if respondent gave materially inconsistent answers, he could be impeached with the grand jury testimony or prosecuted for perjury. App. 144a. Rather, respondent was attempting to obtain an advance ruling from the trial court that the State could not rely on information gathered from respondent's immunized testimony in formulating questions for respondent's on cross-examination. His argument to the trial court was that unless the State could show that it discovered the information *469 that formed the basis of its questions from a source independent of his immunized testimony, the Fifth Amendment prohibited the State from asking those questions. And it was in reliance on the trial court's ruling that it would not decide in advance on this requestbut would wait until each question was asked to consider this objectionthat respondent refused to take the stand. The record at almost every point supports this interpretation of what it was that respondent sought from the trial court. For example, in the course of conceding that respondent properly would be subject to impeachment with the grand jury testimony if he gave answers at trial materially inconsistent with that testimony, respondent's counsel stated that he "merely want[ed] a ruling from the Court that, unless the door is opened, that they are not permitted to use any of [the immunized testimony] by way of cross examination, by way of rebuttal, or by way of cross examination of any of our witnesses, with the one limitation, that I think is inherent, is that except in the event of perjury" (emphasis added). App. 146a. See at 143a-148a. Similarly, when counsel renewed this argument at the close of the State's evidence, the record reveals that his concern was not with impeachment, but with the use of the immunized testimony as a basis for asking questions. Thus, counsel argued that what the immunity statute proscribed was "use [of] the fruits of his testimony to cross examine him in his testimony." at 203a.[1] *470 Concededly, in the passage the Court quotes, ante, at 454-455, the trial court stated that if respondent gave materially inconsistent answers, it would permit impeachment with the immunized testimony. But an examination of the entire discussion from which that quotation is lifted makes it clear that respondent was not seeking a ruling as to impeachment for inconsistent statements, but a limitation on the scope of cross-examination. Thus, just before the quoted exchange, respondent's counsel assured the trial court that "the direct examination will in no way be inconsistent with his grand jury [immunized] testimony," App. 220a, but that the problem concerned the use of "consistent grand jury testimony which is incriminating to convict the man on the stand." And immediately after the passage upon which the Court relies, respondent waved off the impeachment issue and stated that the problem that concerned him was the use by the State of information obtained from the immunized testimony to force respondent to give answers on the stand that would incriminate him.[2] The trial court refused to rule in advance on this attempt to limit cross-examination, and it was this refusal that respondent claimed prompted his refusal to testify. at 243a. Before the Appellate Division, however, the dispute was transmuted into one over the ability of the State to impeach respondent with the immunized testimony. It was on that issue that the conviction was reversed. And it is on *471 that issue that this Court affirms that reversal. Thus, because the Court reaches out to decide a theoretical legal question presented in an abstract setting, it permits respondent to obtain a favorable ruling from this Court on an issue of federal law that he did not assert in the trial court, and that did not form the basis for his refusing to testify in that court. And I assume respondent will be free at a new trial to renew his original argument, that the State is forbidden to use what it learned from the immunized testimony in formulating questions on cross-examination. This illustrates, I think, the problems the Court will encounter in every case in which it abandons the requirement that such an issue be presented for resolution only in the context of a concrete dispute about its actual operation at trial. If this case presented simply the question whether state law had viewed the federal issue as properly presented, I could understand better the Court's desire to reach the federal issue. But though a State may decide whether a federal issue actually present in the case properly was brought to the attention of its own courts for adjudication, e. g., it never should transform an abstract dispute about a federal constitutional right into a case or controversy capable of being adjudicated in this Court simply by deciding that federal issue. Otherwise, a State, by ruling on a purely hypothetical legal question in the context of reviewing a criminal conviction, could confer Art. III jurisdiction on this Court where the facts do not support the existence of a case or controversy. I would require that respondent take the stand and actually assert the rights he seeks to vindicate in the context of an actual attempt by the State to use the immunized testimony. Because the Court does not require this, I dissent. |
Justice Ginsburg | majority | false | United States v. Sineneng-Smith | 2020-05-07T00:00:00 | null | https://www.courtlistener.com/opinion/4752098/united-states-v-sineneng-smith/ | https://www.courtlistener.com/api/rest/v3/clusters/4752098/ | 2,020 | null | null | null | null | This case concerns 8 U.S. C. §1324, which makes it a
federal felony to “encourag[e] or induc[e] an alien to come
to, enter, or reside in the United States, knowing or in
reckless disregard of the fact that such coming to,
entry, or residence is or will be in violation of law.”
§1324(a)(1)(A)(iv). The crime carries an enhanced penalty
if “done for the purpose of commercial advantage or private
financial gain.” §1324(a)(1)(B)(i).1
Respondent Evelyn Sineneng-Smith operated an immi-
gration consulting firm in San Jose, California. She was
indicted for multiple violations of §1324(a)(1)(A)(iv) and
(B)(i). Her clients, most of them from the Philippines,
worked without authorization in the home health care
industry in the United States. Between 2001 and 2008,
Sineneng-Smith assisted her clients in applying for a “labor
certification” that once allowed certain aliens to adjust their
——————
1 For violations of 8 U.S. C. §1324(a)(1)(A)(iv), the prison term is “not
more than 5 years,” §1324(a)(1)(B)(ii); if “the offense was done for . . .
private financial gain,” the prison term is “not more than 10 years,”
§1324(a)(1)(B)(i).
2 UNITED STATES v. SINENENG-SMITH
Opinion of the Court
status to that of lawful permanent resident permitted to
live and work in the United States. §1255(i)(1)(B)(ii).
There was a hindrance to the efficacy of Sineneng-
Smith’s advice and assistance. To qualify for the labor-
certification dispensation she promoted to her clients, an
alien had to be in the United States on December 21, 2000,
and apply for certification before April 30, 2001.
§1255(i)(1)(C). Sineneng-Smith knew her clients did not
meet the application-filing deadline; hence, their applica-
tions could not put them on a path to lawful residence.2
Nevertheless, she charged each client $5,900 to file an ap-
plication with the Department of Labor and another $900
to file with the U. S. Citizenship and Immigration Services.
For her services in this regard, she collected more than $3.3
million from her unwitting clients.
In the District Court, Sineneng-Smith urged unsuccess-
fully, inter alia, that the above-cited provisions, properly
construed, did not cover her conduct, and if they did, they
violated the Petition and Free Speech Clauses of the First
Amendment as applied. See Motion to Dismiss in No. 10–
cr–414 (ND Cal.), pp. 7–13, 20–25; Motion for Judgt. of Ac-
quittal in No. 10–cr–414 (ND Cal.), pp. 14–19, 20–25. She
was convicted on two counts under §1324(a)(1)(A)(iv) and
(B)(i), and on other counts (filing false tax returns and mail
fraud) she does not now contest. Throughout the District
Court proceedings and on appeal, she was represented by
competent counsel.
On appeal from the §1324 convictions to the Ninth
Circuit, both on brief and at oral argument, Sineneng-
——————
2 Sineneng-Smith argued that labor-certification applications were
often approved despite expiration of the statutory dispensation, and that
an approved application, when submitted as part of a petition for adjust-
ment of status, would place her clients in line should Congress reactivate
the dispensation. See Motion for Judgt. of Acquittal in No. 10–cr–414
(ND Cal.), p. 16.
Cite as: 590 U. S. ____ (2020) 3
Opinion of the Court
Smith essentially repeated the arguments she earlier pre-
sented to the District Court. See Brief for Appellant in
No. 15–10614 (CA9), pp. 11–28. The case was then moved
by the appeals panel onto a different track. Instead of ad-
judicating the case presented by the parties, the appeals
court named three amici and invited them to brief and ar-
gue issues framed by the panel, including a question
Sineneng-Smith herself never raised earlier: “[W]hether
the statute of conviction is overbroad . . . under the First
Amendment.” App. 122–124. In the ensuing do over of the
appeal, counsel for the parties were assigned a secondary
role. The Ninth Circuit ultimately concluded, in accord
with the invited amici’s arguments, that §1324(a)(1)(A)(iv)
is unconstitutionally overbroad. 910 F.3d 461, 485 (2018).
The Government petitioned for our review because the
judgment of the Court of Appeals invalidated a federal stat-
ute. Pet. for Cert. 24. We granted the petition. 588 U. S.
___ (2019).
As developed more completely hereinafter, we now hold
that the appeals panel departed so drastically from the
principle of party presentation as to constitute an abuse of
discretion. We therefore vacate the Ninth Circuit’s judg-
ment and remand the case for an adjudication of the appeal
attuned to the case shaped by the parties rather than the
case designed by the appeals panel.
I
In our adversarial system of adjudication, we follow the
principle of party presentation. As this Court stated in
Greenlaw v. United States, 554 U.S. 237 (2008), “in both
civil and criminal cases, in the first instance and on appeal
. . . , we rely on the parties to frame the issues for decision
and assign to courts the role of neutral arbiter of matters
the parties present.” Id., at 243. In criminal cases, depar-
tures from the party presentation principle have usually oc-
curred “to protect a pro se litigant’s rights.” Id., at 244;
4 UNITED STATES v. SINENENG-SMITH
Opinion of the Court
see, e.g., Castro v. United States, 540 U.S. 375, 381–383
(2003) (affirming courts’ authority to recast pro se litigants’
motions to “avoid an unnecessary dismissal” or “inappropri-
ately stringent application of formal labeling requirements,
or to create a better correspondence between the substance
of a pro se motion’s claim and its underlying legal basis” (ci-
tation omitted)). But as a general rule, our system “is de-
signed around the premise that [parties represented by
competent counsel] know what is best for them, and are re-
sponsible for advancing the facts and argument entitling
them to relief.” Id., at 386 (Scalia, J., concurring in part
and concurring in judgment).3
In short: “[C]ourts are essentially passive instruments of
government.” United States v. Samuels, 808 F.2d 1298,
1301 (CA8 1987) (Arnold, J., concurring in denial of reh’g
en banc)). They “do not, or should not, sally forth each day
looking for wrongs to right. [They] wait for cases to come to
[them], and when [cases arise, courts] normally decide only
questions presented by the parties.” Ibid.
The party presentation principle is supple, not ironclad.
There are no doubt circumstances in which a modest initi-
ating role for a court is appropriate. See, e.g., Day v.
McDonough, 547 U.S. 198, 202 (2006) (federal court had
“authority, on its own initiative,” to correct a party’s “evi-
dent miscalculation of the elapsed time under a statute [of
limitations]” absent “intelligent waiver”).4 But this case
scarcely fits that bill. To explain why that is so, we turn
——————
3 See Kaplan, Civil Procedure—Reflections on the Comparison of Sys-
tems, 9 Buffalo L. Rev. 409, 431–432 (1960) (U. S. system “exploits the
free-wheeling energies of counsel and places them in adversary confron-
tation before a detached judge”; “German system puts its trust in a judge
of paternalistic bent acting in cooperation with counsel of somewhat
muted adversary zeal”).
4 In an addendum to this opinion, we list cases in which this Court has
called for supplemental briefing or appointed amicus curiae in recent
years. None of them bear any resemblance to the redirection ordered by
the Ninth Circuit panel in this case.
Cite as: 590 U. S. ____ (2020) 5
Opinion of the Court
first to the proceedings in the District Court.
In July 2010, a grand jury returned a multicount indict-
ment against Sineneng-Smith, including three counts of
violating §1324, three counts of mail fraud in violation of 18
U.S. C. §1341, and two counts of willfully subscribing to a
false tax return in violation of 26 U.S. C. §7206(1).
Sineneng-Smith pleaded guilty to the tax-fraud counts,
App. to Pet. for Cert. 78a–79a, and did not pursue on appeal
the two mail-fraud counts on which she was ultimately
convicted. We therefore concentrate this description on her
defenses against the §1324 charges.
Before trial, Sineneng-Smith moved to dismiss the §1324
counts. Motion to Dismiss in No. 10–cr–414 (ND Cal.). She
asserted first that the conduct with which she was
charged—advising and assisting aliens about labor certifi-
cations—is not proscribed by §1324(a)(1)(A)(iv) and (B)(i).
Being hired to file lawful applications on behalf of aliens
already residing in the United States, she maintained, did
not “encourage” or “induce” them to remain in this country.
Id., at 7–13. Next, she urged, alternatively, that clause (iv)
is unconstitutionally vague and therefore did not provide
fair notice that her conduct was prohibited, id., at 13–18, or
should rank as a content-based restraint on her speech, id.,
at 22–24. She further asserted that she has a right safe-
guarded to her by the Petition and Free Speech Clauses of
the First Amendment to file applications on her clients’ be-
half. Id., at 20–25. Nowhere did she so much as hint that
the statute is infirm, not because her own conduct is pro-
tected, but because it trenches on the First Amendment
sheltered expression of others.
The District Court denied the motion to dismiss,
holding that Sineneng-Smith could “encourag[e]” nonciti-
zens to remain in the country, within the meaning of
§1324(a)(1)(A)(iv), “[b]y suggesting to [them] that the appli-
cations she would make on their behalf, in exchange for
their payments, would allow them to eventually obtain
6 UNITED STATES v. SINENENG-SMITH
Opinion of the Court
legal permanent residency in the United States.” App. to
Pet. for Cert. 73a. The court also rejected Sineneng-Smith’s
constitutional arguments, reasoning that she was prose-
cuted, not for filing clients’ applications, but for falsely rep-
resenting to noncitizens that her efforts, for which she col-
lected sizable fees, would enable them to gain lawful status.
Id., at 75a.
After a 12-day trial, the jury found Sineneng-Smith guilty
on the three §1324 counts charged in the indictment, along
with the three mail-fraud counts. App. 118–121. Sineneng-
Smith then moved for a judgment of acquittal. She re-
newed, “almost verbatim,” the arguments made in her mo-
tion to dismiss, App. to Pet. for Cert. 65a, and the District
Court rejected those arguments “[f ]or the same reasons as
the court expressed in its order denying Sineneng-Smith’s
motion to dismiss,” ibid. She simultaneously urged that the
evidence did not support the verdicts. Motion for Judgt. of
Acquittal in No. 10–cr–414 (ND Cal.), at 1–14. The District
Court found the evidence sufficient as to two of the three
§1324 counts and two of the three mail-fraud counts. App.
to Pet. for Cert. 67a.5
Sineneng-Smith’s appeal to the Ninth Circuit from the
District Court’s §1324 convictions commenced unremarka-
bly. On brief and at oral argument, she reasserted the self-
regarding arguments twice rehearsed, initially in her mo-
tion to dismiss, and later in her motion for acquittal. Brief
for Appellant in No. 15–10614 (CA9), at 9–27, 35–41;
Recording of Oral Arg. (Apr. 18, 2017), at 37:00–39:40; see
supra, at 5. With the appeal poised for decision based upon
the parties’ presentations, the appeals panel intervened. It
ordered further briefing, App. 122–124, but not from the
——————
5 The court sentenced Sineneng-Smith to 18 months on each of the re-
maining counts; three years of supervised release on the §1324 and mail-
fraud counts; and one year of supervised release on the filing of false tax
returns count, all to run concurrently. She was also ordered to pay
$43,550 in restitution, a $15,000 fine, and a $600 special assessment.
Cite as: 590 U. S. ____ (2020) 7
Opinion of the Court
parties. Instead, it named three organizations—“the Fed-
eral Defender Organizations of the Ninth Circuit (as a
group)[,] the Immigrant Defense Project[,] and the National
Immigration Project of the National Lawyers Guild”—and
invited them to file amicus briefs on three issues:
“1. Whether the statute of conviction is overbroad or
likely overbroad under the First Amendment, and if so,
whether any permissible limiting construction would
cure the First Amendment problem?
“2. Whether the statute of conviction is void for
vagueness or likely void for vagueness, either under the
First Amendment or the Fifth Amendment, and if so,
whether any permissible limiting construction would
cure the constitutional vagueness problem?
“3. Whether the statute of conviction contains an
implicit mens rea element which the Court should
enunciate. If so: (a) what should that mens rea element
be; and (b) would such a mens rea element cure any se-
rious constitutional problems the Court might deter-
mine existed?” Ibid.
Counsel for the parties were permitted, but “not re-
quired,” to file supplemental briefs “limited to responding
to any and all amicus/amici briefs.” Id., at 123 (emphasis
added). Invited amici and amici not specifically invited to
file were free to “brief such further issues as they, respec-
tively, believe the law, and the record calls for.” Ibid. The
panel gave invited amici 20 minutes for argument, and al-
located only 10 minutes to Sineneng-Smith’s counsel. Rear-
gument Order in No. 15–10614 (CA9), Doc. No. 92. Of the
three specified areas of inquiry, the panel reached only the
first, holding that §1324(a)(1)(A)(iv) was facially overbroad
under the First Amendment, 910 F.3d, at 483–485, and
was not susceptible to a permissible limiting construction,
id., at 472, 479.
True, in the redone appeal, Sineneng-Smith’s counsel
8 UNITED STATES v. SINENENG-SMITH
Opinion of the Court
adopted without elaboration counsel for amici’s over-
breadth arguments. See Supplemental Brief for Appellant
in No. 15–10614 (CA9), p. 1. How could she do otherwise?
Understandably, she rode with an argument suggested by
the panel. In the panel’s adjudication, her own arguments,
differently directed, fell by the wayside, for they did not
mesh with the panel’s overbreadth theory of the case.
II
No extraordinary circumstances justified the panel’s
takeover of the appeal. Sineneng-Smith herself had raised
a vagueness argument and First Amendment arguments
homing in on her own conduct, not that of others. Electing
not to address the party-presented controversy, the panel
projected that §1324(a)(1)(A)(iv) might cover a wide swath
of protected speech, including political advocacy, legal ad-
vice, even a grandmother’s plea to her alien grandchild to
remain in the United States. 910 F.3d, at 483–484.6 Nev-
ermind that Sineneng-Smith’s counsel had presented a con-
trary theory of the case in the District Court, and that this
Court has repeatedly warned that “invalidation for [First
Amendment] overbreadth is ‘strong medicine’ that is not to
be ‘casually employed.’ ” United States v. Williams, 553
U.S. 285, 293 (2008) (quoting Los Angeles Police Dept. v.
United Reporting Publishing Corp., 528 U.S. 32, 39 (1999)).
As earlier observed, see supra, at 4, a court is not hide-
bound by the precise arguments of counsel, but the Ninth
Circuit’s radical transformation of this case goes well be-
yond the pale.
——————
6 The Solicitor General maintained that the statute does not reach pro-
tected speech. Brief for United States 32. In the Government’s view,
§1324(a)(1)(A)(iv) should be construed to prohibit only speech facilitating
or soliciting illegal activity, thus falling within the exception to the First
Amendment for speech integral to criminal conduct. Id., at 22–26, 31
(citing United States v. Williams, 553 U.S. 285, 298 (2008)).
Cite as: 590 U. S. ____ (2020) 9
Opinion of the Court
* * *
For the reasons stated, we vacate the Ninth Circuit’s
judgment and remand the case for reconsideration shorn of
the overbreadth inquiry interjected by the appellate panel
and bearing a fair resemblance to the case shaped by the
parties.
It is so ordered.
10 UNITED STATES v. SINENENG-SMITH
Opinion
Addendum of the Court
to opinion of the Court
Addendum of cases, 2015–2020, in which this Court
called for supplemental briefing or appointed
amicus curiae
This Court has sought supplemental briefing: to deter-
mine whether a case presented a controversy suitable for
the Court’s review, Trump v. Mazars USA, LLP, post, p. ___
(ordering briefing on application of political question doc-
trine and related justiciability principles); Frank v. Gaos,
586 U. S. ___ (2018) (ordering briefing on Article III stand-
ing); Wittman v. Personhuballah, 576 U.S. 1093 (2015)
(same); Docket Entry in Gloucester County School Bd. v.
G. G., O. T. 2016, No. 16–273 (Feb. 23, 2017) (ordering
briefing on intervening Department of Education and De-
partment of Justice guidance document); Kingdomware
Technologies, Inc. v. United States, 577 U.S. 970 (2015) (or-
dering briefing on mootness); to determine whether the case
could be resolved on a basis narrower than the question pre-
sented, Zubik v. Burwell, 578 U. S. ___ (2016) (ordering
briefing on whether the plaintiffs could obtain relief with-
out entirely invalidating challenged federal regulations);
and to clarify an issue or argument the parties raised,
Google LLC v. Oracle America, Inc., post, p.___ (ordering
further briefing on the parties’ dispute over the standard of
review applicable to the question presented); Babb v.
Wilkie, 589 U. S. ___ (2020) (ordering briefing on an asser-
tion counsel made for the first time at oral argument about
alternative remedies available to the plaintiff ); Sharp v.
Murphy, reported sub nom. Carpenter v. Murphy, 586 U. S.
___ (2018) (ordering briefing on the implications of the par-
ties’ statutory interpretations).
In rare instances, we have ordered briefing on a constitu-
tional issue implicated, but not directly presented, by the
question on which we granted certiorari. See Jennings v.
Rodriguez, 580 U. S. ___ (2016) (in a case about availability
of a bond hearing under a statute mandating detention of
Cite as: 590 U. S. ____ (2020) 11
Opinion
Addendum of the Court
to opinion of the Court
certain noncitizens, briefing ordered on whether the Con-
stitution requires such a hearing); Johnson v. United
States, 574 U.S. 1069 (2015) (in a case involving interpre-
tation of the Armed Career Criminal Act’s residual clause,
briefing ordered on whether that clause is unconstitution-
ally vague). But in both cases, the parties had raised the
relevant constitutional challenge in lower courts; the ques-
tion was not interjected into the case for the first time by
an appellate forum. In Jennings, moreover, the parties’
statutory arguments turned expressly on the constitutional
issue. Jennings v. Rodriguez, 583 U. S. ___ (2018). And in
Johnson, although this Court had interpreted the Act’s re-
sidual clause four times in the preceding nine years, there
still remained “pervasive disagreement” in the lower courts
about its application. Johnson v. United States, 576 U.S.
591, 601 (2015).
We have appointed amicus curiae: to present argument
in support of the judgment below when a prevailing party
has declined to defend the lower court’s decision or an as-
pect of it, Seila Law LLC v. Consumer Financial Protection
Bureau, 589 U. S. ___ (2019); Holguin-Hernandez v. United
States, 588 U. S. ___ (2019); Culbertson v. Berryhill, 584
U. S. ___ (2018); Lucia v. SEC, 583 U. S. ___ (2018); Beckles
v. United States, 579 U. S. ___ (2016); Welch v. United
States, 577 U.S. 1098 (2016); McLane Co. v. EEOC, 580
U. S. ___ (2016); Green v. Brennan, 576 U.S. 1087 (2015);
Reyes Mata v. Lynch, reported sub nom. Reyes Mata v.
Holder, 574 U.S. 1118 (2015); and to address the Court’s
jurisdiction to decide the question presented, Montgomery
v. Louisiana, 575 U.S. 933 (2015).
Cite as: 590 U. S. ____ (2020) 1
THOMAS, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 19–67
_________________
UNITED STATES, PETITIONER v. | This case concerns 8 U.S. C. which makes it a federal felony to “encourag[e] or induc[e] an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law.” The crime carries an enhanced penalty if “done for the purpose of commercial advantage or private financial gain.” Respondent Evelyn Sineneng-Smith operated an immi- gration consulting firm in San Jose, California. She was indicted for multiple violations of and (B)(i). Her clients, most of them from the Philippines, worked without authorization in the home health care industry in the United Between 2001 and 2008, Sineneng-Smith assisted her clients in applying for a “labor certification” that once allowed certain aliens to adjust their —————— 1 For violations of 8 U.S. C. the prison term is “not more than 5 years,” if “the offense was done for private financial gain,” the prison term is “not more than 10 years,” 2 UNITED STATES v. SINENENG-SMITH Opinion of the Court status to that of lawful permanent resident permitted to live and work in the United There was a hindrance to the efficacy of Sineneng- Smith’s advice and assistance. To qualify for the labor- certification dispensation she promoted to her clients, an alien had to be in the United States on December 21, 2000, and apply for certification before April 30, 2001. Sineneng-Smith knew her clients did not meet the application-filing deadline; hence, their applica- tions could not put them on a path to lawful residence.2 Nevertheless, she charged each client $5,900 to file an ap- plication with the Department of Labor and another $900 to file with the U. S. Citizenship and Immigration Services. For her services in this regard, she collected more than $3.3 million from her unwitting clients. In the District Court, Sineneng-Smith urged unsuccess- fully, inter alia, that the above-cited provisions, properly construed, did not cover her conduct, and if they did, they violated the Petition and Free Speech Clauses of the First as applied. See Motion to Dismiss in No. 10– cr–414 (ND Cal.), pp. 7–13, 20–25; Motion for Judgt. of Ac- quittal in No. 10–cr–414 (ND Cal.), pp. 14–19, 20–25. She was convicted on two counts under and (B)(i), and on other counts (filing false tax returns and mail fraud) she does not now contest. Throughout the District Court proceedings and on appeal, she was represented by competent counsel. On appeal from the convictions to the Ninth Circuit, both on brief and at oral argument, Sineneng- —————— 2 Sineneng-Smith argued that labor-certification applications were often approved despite expiration of the statutory dispensation, and that an approved application, when submitted as part of a petition for adjust- ment of status, would place her clients in line should Congress reactivate the dispensation. See Motion for Judgt. of Acquittal in No. 10–cr–414 (ND Cal.), p. 16. Cite as: 590 U. S. (0) 3 Opinion of the Court Smith essentially repeated the arguments she earlier pre- sented to the District Court. See Brief for Appellant in No. 15–10614 (CA9), pp. 11–28. The case was then moved by the appeals panel onto a different track. Instead of ad- judicating the case presented by the parties, the appeals court named three amici and invited them to brief and ar- gue issues framed by the panel, including a question Sineneng-Smith herself never raised earlier: “[W]hether the statute of conviction is overbroad under the First” App. 122–124. In the ensuing do over of the appeal, counsel for the parties were assigned a secondary role. The Ninth Circuit ultimately concluded, in accord with the invited amici’s arguments, that is unconstitutionally overbroad. The Government petitioned for our review because the judgment of the Court of Appeals invalidated a federal stat- ute. Pet. for Cert. 24. We granted the petition. 588 U. S. (2019). As developed more completely hereinafter, we now hold that the appeals panel departed so drastically from the principle of party presentation as to constitute an abuse of discretion. We therefore vacate the Ninth Circuit’s judg- ment and remand the case for an adjudication of the appeal attuned to the case shaped by the parties rather than the case designed by the appeals panel. I In our adversarial system of adjudication, we follow the principle of party presentation. As this Court stated in “in both civil and criminal cases, in the first instance and on appeal we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present.” In criminal cases, depar- tures from the party presentation principle have usually oc- curred “to protect a pro se litigant’s rights.” ; 4 UNITED STATES v. SINENENG-SMITH Opinion of the Court see, e.g., 381–383 (2003) (affirming courts’ authority to recast pro se litigants’ motions to “avoid an unnecessary dismissal” or “inappropri- ately stringent application of formal labeling requirements, or to create a better correspondence between the substance of a pro se motion’s claim and its underlying legal basis” (ci- tation omitted)). But as a general rule, our system “is de- signed around the premise that [parties represented by competent counsel] know what is best for them, and are re- sponsible for advancing the facts and argument entitling them to relief.” (Scalia, J., concurring in part and concurring in judgment).3 In short: “[C]ourts are essentially passive instruments of government.” United 1301 (CA8 1987) (Arnold, J., concurring in denial of reh’g en banc)). They “do not, or should not, sally forth each day looking for wrongs to right. [They] wait for cases to come to [them], and when [cases arise, courts] normally decide only questions presented by the parties.” The party presentation principle is supple, not ironclad. There are no doubt circumstances in which a modest initi- ating role for a court is appropriate. See, e.g., Day v. McDonough, (federal court had “authority, on its own initiative,” to correct a party’s “evi- dent miscalculation of the elapsed time under a statute [of limitations]” absent “intelligent waiver”).4 But this case scarcely fits that bill. To explain why that is so, we turn —————— 3 See Kaplan, Civil Procedure—Reflections on the Comparison of Sys- tems, 9 Buffalo L. Rev. 409, 431–432 (1960) (U. S. system “exploits the free-wheeling energies of counsel and places them in adversary confron- tation before a detached judge”; “German system puts its trust in a judge of paternalistic bent acting in cooperation with counsel of somewhat muted adversary zeal”). 4 In an addendum to this opinion, we list cases in which this Court has called for supplemental briefing or appointed amicus curiae in recent years. None of them bear any resemblance to the redirection ordered by the Ninth Circuit panel in this case. Cite as: 590 U. S. (0) 5 Opinion of the Court first to the proceedings in the District Court. In July 2010, a grand jury returned a multicount indict- ment against Sineneng-Smith, including three counts of violating three counts of mail fraud in violation of 18 U.S. C. and two counts of willfully subscribing to a false tax return in violation of 26 U.S. C. Sineneng-Smith pleaded guilty to the tax-fraud counts, App. to Pet. for Cert. 78a–79a, and did not pursue on appeal the two mail-fraud counts on which she was ultimately convicted. We therefore concentrate this description on her defenses against the charges. Before trial, Sineneng-Smith moved to dismiss the counts. Motion to Dismiss in No. 10–cr–414 (ND Cal.). She asserted first that the conduct with which she was charged—advising and assisting aliens about labor certifi- cations—is not proscribed by and (B)(i). Being hired to file lawful applications on behalf of aliens already residing in the United States, she maintained, did not “encourage” or “induce” them to remain in this country. at 7–13. Next, she urged, alternatively, that clause (iv) is unconstitutionally vague and therefore did not provide fair notice that her conduct was prohibited, at 13–18, or should rank as a content-based restraint on her speech, at 22–24. She further asserted that she has a right safe- guarded to her by the Petition and Free Speech Clauses of the First to file applications on her clients’ be- half. at 20–25. Nowhere did she so much as hint that the statute is infirm, not because her own conduct is pro- tected, but because it trenches on the First sheltered expression of others. The District Court denied the motion to dismiss, holding that Sineneng-Smith could “encourag[e]” nonciti- zens to remain in the country, within the meaning of “[b]y suggesting to [them] that the appli- cations she would make on their behalf, in exchange for their payments, would allow them to eventually obtain 6 UNITED STATES v. SINENENG-SMITH Opinion of the Court legal permanent residency in the United ” App. to Pet. for Cert. 73a. The court also rejected Sineneng-Smith’s constitutional arguments, reasoning that she was prose- cuted, not for filing clients’ applications, but for falsely rep- resenting to noncitizens that her efforts, for which she col- lected sizable fees, would enable them to gain lawful status. at 75a. After a 12-day trial, the jury found Sineneng-Smith guilty on the three counts charged in the indictment, along with the three mail-fraud counts. App. 118–121. Sineneng- Smith then moved for a judgment of acquittal. She re- newed, “almost verbatim,” the arguments made in her mo- tion to dismiss, App. to Pet. for Cert. 65a, and the District Court rejected those arguments “[f ]or the same reasons as the court expressed in its order denying Sineneng-Smith’s motion to dismiss,” She simultaneously urged that the evidence did not support the verdicts. Motion for Judgt. of Acquittal in No. 10–cr–414 (ND Cal.), at 1–14. The District Court found the evidence sufficient as to two of the three counts and two of the three mail-fraud counts. App. to Pet. for Cert. 67a.5 Sineneng-Smith’s appeal to the Ninth Circuit from the District Court’s convictions commenced unremarka- bly. On brief and at oral argument, she reasserted the self- regarding arguments twice rehearsed, initially in her mo- tion to dismiss, and later in her motion for acquittal. Brief for Appellant in No. 15–10614 (CA9), at 9–27, 35–41; Recording of Oral Arg. (Apr. 18, 2017), at 37:00–:40; see With the appeal poised for decision based upon the parties’ presentations, the appeals panel intervened. It ordered further briefing, App. 122–124, but not from the —————— 5 The court sentenced Sineneng-Smith to 18 months on each of the re- maining counts; three years of supervised release on the and mail- fraud counts; and one year of supervised release on the filing of false tax returns count, all to run concurrently. She was also ordered to pay $43,550 in restitution, a $15,000 fine, and a $600 special assessment. Cite as: 590 U. S. (0) 7 Opinion of the Court parties. Instead, it named three organizations—“the Fed- eral Defender Organizations of the Ninth Circuit (as a group)[,] the Immigrant Defense Project[,] and the National Immigration Project of the National Lawyers Guild”—and invited them to file amicus briefs on three issues: “1. Whether the statute of conviction is overbroad or likely overbroad under the First and if so, whether any permissible limiting construction would cure the First problem? “2. Whether the statute of conviction is void for vagueness or likely void for vagueness, either under the First or the Fifth and if so, whether any permissible limiting construction would cure the constitutional vagueness problem? “3. Whether the statute of conviction contains an implicit mens rea element which the Court should enunciate. If so: (a) what should that mens rea element be; and (b) would such a mens rea element cure any se- rious constitutional problems the Court might deter- mine existed?” Counsel for the parties were permitted, but “not re- quired,” to file supplemental briefs “limited to responding to any and all amicus/amici briefs.” (emphasis added). Invited amici and amici not specifically invited to file were free to “brief such further issues as they, respec- tively, believe the law, and the record calls for.” The panel gave invited amici 20 minutes for argument, and al- located only 10 minutes to Sineneng-Smith’s counsel. Rear- gument Order in No. 15–10614 (CA9), Doc. No. 92. Of the three specified areas of inquiry, the panel reached only the first, holding that was facially overbroad under the First –, and was not susceptible to a permissible limiting construction, True, in the redone appeal, Sineneng-Smith’s counsel 8 UNITED STATES v. SINENENG-SMITH Opinion of the Court adopted without elaboration counsel for amici’s over- breadth arguments. See Supplemental Brief for Appellant in No. 15–10614 (CA9), p. 1. How could she do otherwise? Understandably, she rode with an argument suggested by the panel. In the panel’s adjudication, her own arguments, differently directed, fell by the wayside, for they did not mesh with the panel’s overbreadth theory of the case. II No extraordinary circumstances justified the panel’s takeover of the appeal. Sineneng-Smith herself had raised a vagueness argument and First arguments homing in on her own conduct, not that of others. Electing not to address the party-presented controversy, the panel projected that might cover a wide swath of protected speech, including political advocacy, legal ad- vice, even a grandmother’s plea to her alien grandchild to remain in the United –484.6 Nev- ermind that Sineneng-Smith’s counsel had presented a con- trary theory of the case in the District Court, and that this Court has repeatedly warned that “invalidation for [First ] overbreadth is ‘strong medicine’ that is not to be ‘casually employed.’ ” United 553 U.S. 285, 293 ). As earlier observed, see a court is not hide- bound by the precise arguments of counsel, but the Ninth Circuit’s radical transformation of this case goes well be- yond the pale. —————— 6 The Solicitor General maintained that the statute does not reach pro- tected speech. Brief for United States 32. In the Government’s view, should be construed to prohibit only speech facilitating or soliciting illegal activity, thus falling within the exception to the First for speech integral to criminal conduct. at 22–26, 31 ). Cite as: 590 U. S. (0) 9 Opinion of the Court * * * For the reasons stated, we vacate the Ninth Circuit’s judgment and remand the case for reconsideration shorn of the overbreadth inquiry interjected by the appellate panel and bearing a fair resemblance to the case shaped by the parties. It is so ordered. 10 UNITED STATES v. SINENENG-SMITH Opinion Addendum of the Court to opinion of the Court Addendum of cases, 2015–0, in which this Court called for supplemental briefing or appointed amicus curiae This Court has sought supplemental briefing: to deter- mine whether a case presented a controversy suitable for the Court’s review, Trump v. Mazars USA, LLP, post, p. (ordering briefing on application of political question doc- trine and related justiciability principles); Frank v. Gaos, 586 U. S. (ordering briefing on Article III stand- ing); (same); Docket Entry in Gloucester County School Bd. v. G. G., O. T. 2016, No. 16–273 (Feb. 23, 2017) (ordering briefing on intervening Department of Education and De- partment of Justice guidance document); Kingdomware Technologies, (or- dering briefing on mootness); to determine whether the case could be resolved on a basis narrower than the question pre- sented, Zubik v. Burwell, 578 U. S. (ordering briefing on whether the plaintiffs could obtain relief with- out entirely invalidating challenged federal regulations); and to clarify an issue or argument the parties raised, Google LLC v. Oracle America, Inc., post, p. (ordering further briefing on the parties’ dispute over the standard of review applicable to the question presented); Babb v. Wilkie, 589 U. S. (0) (ordering briefing on an asser- tion counsel made for the first time at oral argument about alternative remedies available to the plaintiff ); Sharp v. Murphy, reported sub nom. Carpenter v. Murphy, 586 U. S. (ordering briefing on the implications of the par- ties’ statutory interpretations). In rare instances, we have ordered briefing on a constitu- tional issue implicated, but not directly presented, by the question on which we granted certiorari. See Jennings v. Rodriguez, 580 U. S. (in a case about availability of a bond hearing under a statute mandating detention of Cite as: 590 U. S. (0) 11 Opinion Addendum of the Court to opinion of the Court certain noncitizens, briefing ordered on whether the Con- stitution requires such a hearing); (in a case involving interpre- tation of the Armed Career Criminal Act’s residual clause, briefing ordered on whether that clause is unconstitution- ally vague). But in both cases, the parties had raised the relevant constitutional challenge in lower courts; the ques- tion was not interjected into the case for the first time by an appellate forum. In Jennings, moreover, the parties’ statutory arguments turned expressly on the constitutional issue. Jennings v. Rodriguez, 583 U. S. And in Johnson, although this Court had interpreted the Act’s re- sidual clause four times in the preceding nine years, there still remained “pervasive disagreement” in the lower courts about its application. Johnson v. United States, 576 U.S. 591, 601 We have appointed amicus curiae: to present argument in support of the judgment below when a prevailing party has declined to defend the lower court’s decision or an as- pect of it, Seila Law LLC v. Consumer Financial Protection Bureau, 589 U. S. (2019); Holguin-Hernandez v. United States, 588 U. S. (2019); Culbertson v. Berryhill, 584 U. S. ; Lucia v. SEC, 583 U. S. ; Beckles v. United States, 579 U. S. ; ; McLane Co. v. EEOC, 580 U. S. ; ; Reyes Mata v. Lynch, reported sub nom. Reyes Mata v. Holder, ; and to address the Court’s jurisdiction to decide the question presented, Montgomery v. Louisiana, Cite as: 590 U. S. (0) 1 THOMAS, J., concurring SUPREME COURT OF THE UNITED STATES No. 19–67 UNITED STATES, PETITIONER v. |
Justice Scalia | concurring | false | Crosby v. National Foreign Trade Council | 2000-06-19T00:00:00 | null | https://www.courtlistener.com/opinion/118379/crosby-v-national-foreign-trade-council/ | https://www.courtlistener.com/api/rest/v3/clusters/118379/ | 2,000 | 1999-079 | 2 | 9 | 0 | It is perfectly obvious on the face of this statute that Congress, with the concurrence of the President, intended to "provid[e] the President with flexibility in implementing its Burma sanctions policy." Ante, at 375, n. 9. I therefore see no point in devoting a footnote to the interesting (albeit unsurprising) proposition that "[s]tatements by the sponsors of the federal Act" show that they shared this intent, ibid., and that a statement in a letter from a State Department officer shows that flexibility had "the explicit support of the *389 Executive," ante, at 375, n. 9. This excursus is especially pointless since the immediately succeeding footnote must rely upon the statute itself (devoid of any support in statements by "sponsors" or the "Executive") to refute the quite telling argument that the statements were addressed only to flexibility in administering the sanctions of the federal Act, and said nothing at all about state sanctions. See ante, at 376, n. 10.
It is perfectly obvious on the face of the statute that Congress expected the President to use his discretionary authority over sanctions to "move the Burmese regime in the democratic direction," ante, at 377. I therefore see no point in devoting a footnote to the interesting (albeit unsurprising) proposition that "[t]he sponsors of the federal Act" shared this expectation, ante, at 377, n. 12.
It is perfectly obvious on the face of the statute that Congress's Burma policy was a "calibrated" one, which "limit[ed] economic pressure against the Burmese Government to a specific range," ante, at 377. I therefore see no point in devoting a footnote to the interesting (albeit unsurprising) proposition that bills imposing greater sanctions were introduced but not adopted, ante, at 378, n. 13, and to the (even less surprising) proposition that the sponsors of the legislation made clear that its "limits were deliberate," ibid. And I would feel this way even if I shared the Court's naïve assumption that the failure of a bill to make it out of committee, or to be adopted when reported to the floor, is the same as a congressional "reject[ion]" of what the bill contained, ibid. Curiously, the Court later recognizes, in rejecting the argument that Congress's failure to enact express pre-emption implies approval of the state Act, that "the silence of Congress [may be] ambiguous." Ante, at 388. Would that the Court had come to this conclusion before it relied (several times) upon the implications of Congress's failure to enact legislation, see ante, at 376, n. 11, 378, n. 13, 385, n. 23.
*390 It is perfectly obvious on the face of the statute that Congress intended the President to develop a "multilateral strategy" in cooperation with other countries. In fact, the statute says that in so many words, see § 570(c), 110 Stat. 3009-166. I therefore see no point in devoting two footnotes to the interesting (albeit unsurprising) proposition that three Senators also favored a multilateral approach, ante, at 380, n. 15, 382, n. 17.
It is perfectly obvious from the record, as the Court discusses, ante, at 382-385, that the inflexibility produced by the Massachusetts statute has in fact caused difficulties with our allies and has in fact impeded a "multilateral strategy." And as the Court later says in another context, "the existence of conflict cognizable under the Supremacy Clause does not depend on express congressional recognition that federal and state law may conflict," ante, at 388. I therefore see no point in devoting a footnote to the interesting (albeit unsurprising) fact that the "congressional sponsors" of the Act and "the Executive" actually predicted that inflexibility would have the effect of causing difficulties with our allies and impeding a "multilateral strategy," ante, at 385, n. 23.
Of course even if all of the Court's invocations of legislative history were not utterly irrelevant, I would still object to them, since neither the statements of individual Members of Congress (ordinarily addressed to a virtually empty floor),[*] nor Executive statements and letters addressed to congressional committees, nor the nonenactment of other proposed legislation, is a reliable indication of what a majority of both Houses of Congress intended when they voted for the statute before us. The only reliable indication of that intentthe only thing we know for sure can be attributed *391 to all of themis the words of the bill that they voted to make law. In a way, using unreliable legislative history to confirm what the statute plainly says anyway (or what the record plainly shows) is less objectionable since, after all, it has absolutely no effect upon the outcome. But in a way, this utter lack of necessity makes it even worsecalling to mind St. Augustine's enormous remorse at stealing pears when he was not even hungry, and just for the devil of it ("not seeking aught through the shame, but the shame itself!"). The Confessions, Book 2, ¶ 9, in 18 Great Books of the Western World 10-11 (1952) (E. Pusey transl. 1952).
In any case, the portion of the Court's opinion that I consider irrelevant is quite extensive, comprising, in total, about one-tenth of the opinion's size and (since it is in footnote type) even more of the opinion's content. I consider that to be not just wasteful (it was not preordained, after all, that this was to be a 25-page essay) but harmful, since it tells future litigants that, even when a statute is clear on its face, and its effects clear upon the record, statements from the legislative history may help (and presumably harm) the case. If so, they must be researched and discussed by counsel which makes appellate litigation considerably more time consuming, and hence considerably more expensive, than it need be. This to my mind outweighs the arguable good that may come of such persistent irrelevancy, at least when it is indulged in the margins: that it may encourage readers to ignore our footnotes.
For this reason, I join only the judgment of the Court.
| It is perfectly obvious on the face of this statute that Congress, with the concurrence of the President, intended to "provid[e] the President with flexibility in implementing its Burma sanctions policy." Ante, at 375, n. 9. I therefore see no point in devoting a footnote to the interesting (albeit unsurprising) proposition that "[s]tatements by the sponsors of the federal Act" show that they shared this intent, and that a statement in a letter from a State Department officer shows that flexibility had "the explicit support of the *389 Executive," ante, at 375, n. 9. This excursus is especially pointless since the immediately succeeding footnote must rely upon the statute itself (devoid of any support in statements by "sponsors" or the "Executive") to refute the quite telling argument that the statements were addressed only to flexibility in administering the sanctions of the federal Act, and said nothing at all about state sanctions. See ante, at 376, n. 10. It is perfectly obvious on the face of the statute that Congress expected the President to use his discretionary authority over sanctions to "move the Burmese regime in the democratic direction," ante, at 377. I therefore see no point in devoting a footnote to the interesting (albeit unsurprising) proposition that "[t]he sponsors of the federal Act" shared this expectation, ante, at 377, n. 12. It is perfectly obvious on the face of the statute that Congress's Burma policy was a "calibrated" one, which "limit[ed] economic pressure against the Burmese Government to a specific range," ante, at 377. I therefore see no point in devoting a footnote to the interesting (albeit unsurprising) proposition that bills imposing greater sanctions were introduced but not adopted, ante, at 378, n. 13, and to the (even less surprising) proposition that the sponsors of the legislation made clear that its "limits were deliberate," And I would feel this way even if I shared the Court's naïve assumption that the failure of a bill to make it out of committee, or to be adopted when reported to the floor, is the same as a congressional "reject[ion]" of what the bill contained, Curiously, the Court later recognizes, in rejecting the argument that Congress's failure to enact express pre-emption implies approval of the state Act, that "the silence of Congress [may be] ambiguous." Ante, at 388. Would that the Court had come to this conclusion before it relied (several times) upon the implications of Congress's failure to enact legislation, see ante, at 376, n. 11, 378, n. 13, 385, n. 23. *390 It is perfectly obvious on the face of the statute that Congress intended the President to develop a "multilateral strategy" in cooperation with other countries. In fact, the statute says that in so many words, see 570(c), -166. I therefore see no point in devoting two footnotes to the interesting (albeit unsurprising) proposition that three Senators also favored a multilateral approach, ante, at 380, n. 15, 382, n. 17. It is perfectly obvious from the record, as the Court discusses, ante, at 382-385, that the inflexibility produced by the Massachusetts statute has in fact caused difficulties with our allies and has in fact impeded a "multilateral strategy." And as the Court later says in another context, "the existence of conflict cognizable under the Supremacy Clause does not depend on express congressional recognition that federal and state law may conflict," ante, at 388. I therefore see no point in devoting a footnote to the interesting (albeit unsurprising) fact that the "congressional sponsors" of the Act and "the Executive" actually predicted that inflexibility would have the effect of causing difficulties with our allies and impeding a "multilateral strategy," ante, at 385, n. 23. Of course even if all of the Court's invocations of legislative history were not utterly irrelevant, I would still object to them, since neither the statements of individual Members of Congress (ordinarily addressed to a virtually empty floor),[*] nor Executive statements and letters addressed to congressional committees, nor the nonenactment of other proposed legislation, is a reliable indication of what a majority of both Houses of Congress intended when they voted for the statute before us. The only reliable indication of that intentthe only thing we know for sure can be attributed *391 to all of themis the words of the bill that they voted to make law. In a way, using unreliable legislative history to confirm what the statute plainly says anyway (or what the record plainly shows) is less objectionable since, after all, it has absolutely no effect upon the outcome. But in a way, this utter lack of necessity makes it even worsecalling to mind St. Augustine's enormous remorse at stealing pears when he was not even hungry, and just for the devil of it ("not seeking aught through the shame, but the shame itself!"). The Confessions, Book 2, ¶ 9, in 18 Great Books of the Western World 10-11 (1952) (E. Pusey transl. 1952). In any case, the portion of the Court's opinion that I consider irrelevant is quite extensive, comprising, in total, about one-tenth of the opinion's size and (since it is in footnote type) even more of the opinion's content. I consider that to be not just wasteful (it was not preordained, after all, that this was to be a 25-page essay) but harmful, since it tells future litigants that, even when a statute is clear on its face, and its effects clear upon the record, statements from the legislative history may help (and presumably harm) the case. If so, they must be researched and discussed by counsel which makes appellate litigation considerably more time consuming, and hence considerably more expensive, than it need be. This to my mind outweighs the arguable good that may come of such persistent irrelevancy, at least when it is indulged in the margins: that it may encourage readers to ignore our footnotes. For this reason, I join only the judgment of the Court. |
Justice White | majority | false | Colten v. Kentucky | 1972-06-12T00:00:00 | null | https://www.courtlistener.com/opinion/108569/colten-v-kentucky/ | https://www.courtlistener.com/api/rest/v3/clusters/108569/ | 1,972 | 1971-136 | 1 | 7 | 2 | This case presents two unrelated questions. Appellant challenges his Kentucky conviction for disorderly conduct on the ground that the conviction and the State's statute are repugnant to the First and Fourteenth Amendments. He also challenges the constitutionality of the enhanced penalty he received under Kentucky's two-tier system for adjudicating certain criminal cases, whereby a person charged with a misdemeanor may be tried first in an inferior court and, if dissatisfied with the outcome, may have a trial de novo in a court of general *106 criminal jurisdiction but must run the risk, if convicted, of receiving a greater punishment.
Appellant Colten and 15 to 20 other college students gathered at the Blue Grass Airport outside Lexington, Kentucky, to show their support for a state gubernatorial candidate and to demonstrate their lack of regard for Mrs. Richard Nixon, then about to leave Lexington from the airport after a public appearance in the city. When the demonstration had ended, the students got into their automobiles and formed a procession of six to 10 cars along the airport access road to the main highway. A state policeman, observing that one of the first cars in the entourage carried an expired Louisiana license plate, directed the driver, one Mendez, to pull off the road. He complied. Appellant Colten, followed by other motorists in the procession, also pulled off the highway, and Colten approached the officer to find out what was the matter. The policeman explained that the Mendez car bore an expired plate and that a traffic summons would be issued. Colten made some effort to enter into a conversation about the summons. His theory was that Mendez may have received an extension of time in which to obtain new plates. In order to avoid Colten and to complete the issuance of the summons, the policeman took Mendez to the patrol car. Meanwhile, other students had left their cars and additional policemen, having completed their duties at the airport and having noticed the roadside scene, stopped their cars in the traffic lane abreast of the students' vehicles. At least one officer took responsibility for directing traffic, although testimony differed as to the need for doing so. Testimony also differed as to the number of policemen and students present, how many students left their cars and how many were at one time or another standing in the roadway. A state police captain asked on four or five occasions that the group disperse. At least five times *107 police asked Colten to leave.[1] A state trooper made two requests, remarking at least once: "Now, this is none of your affair . . . get back in your car and please move on and clear the road." In response to at least one of these requests Colten replied that he wished to make a transportation arrangement for his friend Mendez and the occupants of the Mendez car, which he understood was to be towed away. Another officer asked three times that Colten depart and when Colten failed to move away he was arrested for violating Kentucky's disorderly conduct statute, Ky. Rev. Stat. § 437.016 (Supp. 1968). The arresting officer testified that Colten's response to the order had been to say that he intended to stay and see what might happen. Colten disputed this. He testified that he expressed a willingness to leave but wanted first to make a transportation arrangement. At trial he added that he feared violence on the part of the police.[2]
The complaint and warrant charging disorderly conduct, which carries a maximum penalty of six months in jail and a fine of $500, were addressed to the Quarterly *108 Court of Fayette County, where Colten was tried, convicted, and fined $10. Exercising his right to a trial de novo in a court of general jurisdiction, Colten "appealed," as the Kentucky rules style this recourse, Ky. Rule Crim. Proc. 12.02, to the Criminal Division of the Fayette Circuit Court. By consent, trial was to the court and Colten was convicted of disorderly conduct and this time fined $50. The Kentucky Court of Appeals affirmed. Colten v. Commonwealth, 467 S.W.2d 374 (1971). It rejected Colten's constitutional challenges to the statute and his claim that the punishment imposed was impermissible, under North Carolina v. Pearce, 395 U.S. 711 (1969). We noted probable jurisdiction. 404 U.S. 1014 (1972).
I
Colten was convicted of violating Ky. Rev. Stat. § 437.016 (1) (f) (Supp. 1968), which states:
"(1) A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:
.....
"(f) Congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse . . . ."
The Kentucky Court of Appeals interpreted the statute in the following way:
"As reasonably construed, the statute does not prohibit the lawful exercise of any constitutional right. We think that the plain meaning of the statute, in requiring that the proscribed conduct be done `with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof,' is that the specified intent must be the predominant intent. Predominance can be determined either (1) from the fact that no bona fide intent to exercise a constitutional *109 right appears to have existed or (2) from the fact that the interest to be advanced by the particular exercise of a constitutional right is insignificant in comparison with the inconvenience, annoyance or alarm caused by the exercise." 467 S.W.2d, at 377.
The evidence warranted a finding, the Kentucky court concluded, that at the time of his arrest, "Colten was not undertaking to exercise any constitutionally protected freedom." Rather, he "appears to have had no purpose other than to cause inconvenience and annoyance. So the statute as applied here did not chill or stifle the exercise of any constitutional right." Id., at 378.
Based on our own examination of the record, we perceive no justification for setting aside the conclusion of the state court that when arrested appellant was not engaged in activity protected by the First Amendment. Colten insists that in seeking to arrange transportation for Mendez and in observing the issuance of a traffic citation he was disseminating and receiving information. But this is a strained, near-frivolous contention and we have little doubt that Colten's conduct in refusing to move on after being directed to do so was not, without more, protected by the First Amendment. Nor can we believe that Colten, although he was not trespassing or disobeying any traffic regulation himself, could not be required to move on. He had no constitutional right to observe the issuance of a traffic ticket or to engage the issuing officer in conversation at that time. The State has a legitimate interest in enforcing its traffic laws and its officers were entitled to enforce them free from possible interference or interruption from bystanders, even those claiming a third-party interest in the transaction. Here the police had cause for apprehension that a roadside strip, crowded with persons and automobiles, might expose the entourage, passing motorists, and police to the risk of accident. We cannot disagree with the finding *110 below that the order to disperse was suited to the occasion. We thus see nothing unconstitutional in the manner in which the statute was applied.
II
Neither are we convinced that the statute is either impermissibly vague or broad. We perceive no violation of "[t]he underlying principle . . . that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed." United States v. Harriss, 347 U.S. 612, 617 (1954); cf. Connally v. General Construction Co., 269 U.S. 385, 391 (1926). Here the statute authorized conviction for refusing to disperse with the intent of causing inconvenience, annoyance, or alarm. Any person who stands in a group of persons along a highway where the police are investigating a traffic violation and seeks to engage the attention of an officer issuing a summons should understand that he could be convicted under subdivision (f) of Kentucky's statute if he fails to obey an order to move on. The root of the vagueness doctrine is a rough idea of fairness. It is not a principle designed to convert into a constitutional dilemma the practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited. We agree with the Kentucky court when it said: "We believe that citizens who desire to obey the statute will have no difficulty in understanding it . . . ." Colten v. Commonwealth, 467 S. W. 2d, at 378.
Colten also argues that the Kentucky statute is overbroad. He relies on Cox v. Louisiana, 379 U.S. 536 (1965), where the Court held unconstitutional a breach-of-peace statute construed to forbid causing agitation or *111 disquiet coupled with refusing to move-on when ordered to do so. The Court invalidated the statute on the ground that it permitted conviction where the mere expression of unpopular views prompted the order that is disobeyed. Colten argues that the Kentucky statute must be stricken down for the same reason.
As the Kentucky statute was construed by the state court, however, a crime is committed only where there is no bona fide intention to exercise a constitutional rightin which event, by definition, the statute infringes no protected speech or conductor where the interest so clearly outweighs the collective interest sought to be asserted that the latter must be deemed insubstantial. The court hypothesized, for example, that one could be convicted for disorderly conduct if at a symphony concert he arose and began lecturing to the audience on leghorn chickens. 467 S.W.2d, at 377. In so confining the reach of its statute, the Kentucky court avoided the shortcomings of the statute invalidated in the Cox case. Individuals may not be convicted under the Kentucky statute merely for expressing unpopular or annoying ideas. The statute comes into operation only when the individual's interest in expression, judged in the light of all relevant factors, is "minuscule" compared to a particular public interest in preventing that expression or conduct at that time and place. As we understand this case, appellant's own conduct was not immune under the First Amendment and neither is his conviction vulnerable on the ground that the statute threatens constitutionally protected conduct of others.[3]
*112 III
Kentucky, like many other States,[4] has a two-tier system for adjudicating less serious criminal cases. In Kentucky, at the option of the arresting officer, those crimes classified under state law as misdemeanors[5] may be charged and tried in a so-called inferior court,[6] where, as in the normal trial setting, a defendant may choose to have a trial or to plead guilty. If convicted after trial or on a guilty plea, however, he has a right to a trial de novo in a court of general criminal jurisdiction, Brown v. Hoblitzell, 307 S.W.2d 739 (Ky. 1957), so *113 long as he applies within the statutory time.[7] The right to a new trial is absolute. A defendant need not allege error in the inferior court proceeding. If he seeks a new trial, the Kentucky statutory scheme contemplates that the slate be wiped clean. Ky. Rule Crim. Proc. 12.06. Prosecution and defense begin anew. By the same token neither the judge nor jury that determines guilt or fixes a penalty in the trial de novo is in any way bound by the inferior court's findings or judgment. The case is to be regarded exactly as if it had been brought there in the first instance. A convicted defendant may seek review in the state appellate courts in the same manner as a person tried initially in the general criminal court. Ky. Rev. Stat. § 23.032 (Supp. 1968). However, a defendant convicted after a trial or plea in an inferior court may not seek ordinary appellate review of the inferior court's ruling. His recourse is the trial de novo.
While by definition two-tier systems throughout the States have in common the trial de novo feature,[8] there are differences in the kind of trial available in the inferior courts of first instance, whether known as county, municipal, police, or justice of the peace courts, or are otherwise referred to. Depending upon the jurisdiction and offense charged, many such systems provide as complete protection for a criminal defendant's constitutional rights as do courts empowered to try more serious crimes. Others, however, lack some of the safeguards provided in more serious criminal cases. Although appellant here was entitled to a six-man jury, cf. Williams v. Florida, 399 U.S. 78 (1970), which he waived, some *114 States do not provide for trial by jury,[9] even in instances where the authorized punishment would entitle the accused to such tribunal. Cf. Duncan v. Louisiana, 391 U.S. 145 (1968). Some, including Kentucky, do not record proceedings[10] and the judges may not be trained for their positions either by experience or schooling.[11]
Two justifications are asserted for such tribunals: first, in this day of increasing burdens on state judiciaries, these courts are designed, in the interest of both the defendant and the State, to provide speedier and less costly adjudications than may be possible in the criminal courts of general jurisdiction where the full range of constitutional guarantees is available; second, if the defendant is not satisfied with the results of his first trial he has the unconditional right to a new trial in a superior court, unprejudiced by the proceedings or the outcome in the inferior courts. Colten, however, considers the Kentucky system to be infirm because the judge in a trial de novo is empowered to sentence anew and is not bound to stay within the limits of the sentence imposed by the inferior court. He bases his attack both on the Due Process Clause, as interpreted in North Carolina v. Pearce, 395 U.S. 711 (1969), and on the Fifth Amendment's Double Jeopardy Clause. The *115 issues appellant raises have produced a division among the state courts that have considered them[12] as well as a conflict among the federal circuits.[13]
Colten rightly reads Pearce to forbid, following a successful appeal and reconviction, the imposition of a greater punishment than was imposed after the first trial, absent specified findings that have not been made here. He insists that the Pearce rule is applicable here and that there is no relevant difference between the Pearce model and the Kentucky two-tier trial de novo system. Both, he asserts, involve reconviction and resentencing, both provide the convicted defendant with the right to "appeal" and in botheven though under the Kentucky scheme the "appeal" is in reality a trial de novoa penalty for the same crime is fixed twice, with the same potential for an increased penalty upon a successful "appeal."
*116 But Pearce did not turn simply on the fact of conviction, appeal, reversal, reconviction, and a greater sentence. The court was there concerned with two defendants who, after their convictions had been set aside on appeal, were reconvicted for the same offenses and sentenced to longer prison terms. In one case the term was increased from 10 to 25 years. Positing that a more severe penalty after reconviction would violate due process of law if imposed as purposeful punishment for having successfully appealed, the court concluded that such untoward sentences occurred with sufficient frequency to warrant the imposition of a prophylactic rule to ensure "that vindictiveness against a defendant for having successfully attacked his first conviction . . . [would] play no part in the sentence he receives after a new trial . . ." and to ensure that the apprehension of such vindictiveness does not "deter a defendant's exercise of the right to appeal or collaterally attack his first conviction. . . ." 395 U.S., at 725.
Our view of the Kentucky two-tier system of administering criminal justice, however, does not lead us to believe, and there is nothing in the record or presented in the briefs to show, that the hazard of being penalized for seeking a new trial, which underlay the holding of Pearce, also inheres in the de novo trial arrangement. Nor are we convinced that defendants convicted in Kentucky's inferior courts would be deterred from seeking a second trial out of fear of judicial vindictiveness. The possibility of vindictiveness, found to exist in Pearce, is not inherent in the Kentucky two-tier system.
We note first the obvious: that the court which conducted Colten's trial and imposed the final sentence was not the court with whose work Colten was sufficiently dissatisfied to seek a different result on appeal; and it *117 is not the court that is asked to do over what it thought it had already done correctly. Nor is the de novo court even asked to find error in another court's work. Rather, the Kentucky court in which Colten had the unrestricted right to have a new trial was merely asked to accord the same trial, under the same rules and procedures, available to defendants whose cases are begun in that court in the first instance. It would also appear that, however understandably a court of general jurisdiction might feel that the defendant who has had a due process trial ought to be satisfied with it, the de novo court in the two-tier system is much more likely to reflect the attitude of the Kentucky Court of Appeals in this case when it stated that "the inferior courts are not designed or equipped to conduct error-free trials, or to insure full recognition of constitutional freedoms. They are courts of convenience, to provide speedy and inexpensive means of disposition of charges of minor offenses." Colten v. Commonwealth, 467 S. W. 2d, at 379. We see no reason, and none is offered, to assume that the de novo court will deal any more strictly with those who insist on a trial in the superior court after conviction in the Quarterly Court than it would with those defendants whose cases are filed originally in the superior court and who choose to put the State to its proof in a trial subject to constitutional guarantees.
It may often be that the superior court will impose a punishment more severe than that received from the inferior court. But it no more follows that such a sentence is a vindictive penalty for seeking a superior court trial than that the inferior court imposed a lenient penalty. The trial de novo represents a completely fresh determination of guilt or innocence. It is not an appeal on the record. As far as we know, the record from the lower court is not before the superior court and is irrelevant *118 to its proceedings. In all likelihood, the trial de novo court is not even informed of the sentence imposed in the inferior court and can hardly be said to have "enhanced" the sentence.[14] In Kentucky, disorderly conduct is punishable by six months in jail and a fine of $500. The inferior court fined Colten $10, the trial de novo court $50. We have no basis for concluding that the latter court did anything other than invoke the normal processes of a criminal trial and then sentence in accordance with the normal standards applied in that court to cases tried there in the first instance. We cannot conclude, on the basis of the present record or our understanding, that the prophylactic rule announced in Pearce is appropriate in the context of the system by which Kentucky administers criminal justice in the less serious criminal cases.
It is suggested, however, that the sentencing strictures imposed by Pearce are essential in order to minimize an asserted unfairness to criminal defendants who must endure a trial in an inferior court with less-than-adequate protections in order to secure a trial comporting completely with constitutional guarantees. We are not persuaded, however, that the Kentucky arrangement for dealing with the less serious offenses disadvantages defendants any more or any less than trials conducted in a court of general jurisdiction in the first instance, as long as the latter are always available. Proceedings in the inferior courts are simple and speedy, and, if the results in Colten's case are any evidence, the penalty is not characteristically severe. Such proceedings offer a defendant the opportunity to learn about the prosecution's case and, if he chooses, he need not reveal his own. He may *119 also plead guilty without a trial and promptly secure a de novo trial in a court of general criminal jurisdiction. He cannot, and will not, face the realistic threat of a prison sentence in the inferior court without having the help of counsel, whose advice will also be available in determining whether to seek a new trial, with the slate wiped clean, or to accept the penalty imposed by the inferior court. The State has no such options. Should it not prevail in the lower court, the case is terminated, whereas the defendant has the choice of beginning anew. In reality his choices are to accept the decision of the judge and the sentence imposed in the inferior court or to reject what in effect is no more than an offer in settlement of his case and seek the judgment of judge or jury in the superior court, with sentence to be determined by the full record made in that court. We cannot say that the Kentucky trial de novo system, as such, is unconstitutional or that it presents hazards warranting the restraints called for in North Carolina v. Pearce, particularly since such restraints might, to the detriment of both defendant and State, diminish the likelihood that inferior courts would impose lenient sentences whose effect would be to limit the discretion of a superior court judge or jury if the defendant is retried and found guilty.
Colten's alternative contention is that the Double Jeopardy Clause prohibits the imposition of an enhanced penalty upon reconviction. The Pearce Court rejected the same contention in the context of that case, 395 U.S., at 719-720. Colten urges that his claim is stronger because the Kentucky system forces a defendant to expose himself to jeopardy as a price for securing a trial that comports with the Constitution. That was, of course, the situation in Pearce, where reversal of the first conviction was for constitutional error. The contention also ignores that a defendant can bypass the inferior court simply by pleading guilty and erasing immediately *120 thereafter any consequence that would otherwise follow from tendering the plea.
The judgment of the Kentucky Court of Appeals is
Affirmed.
MR. | This presents two unrelated questions Appellant challenges his Kentucky conviction for disorderly conduct on the ground that the conviction and the State's statute are repugnant to the First and Fourteenth Amendments He also challenges the constitutionality of the enhanced penalty he received under Kentucky's two-tier system for adjudicating certain criminal s, whereby a person charged with a misdemeanor may be tried first in an inferior court and, if dissatisfied with the outcome, may have a trial de novo in a court of general *106 criminal jurisdiction but must run the risk, if convicted, of receiving a greater punishment Appellant Colten and 15 to 20 other college students gathered at the Blue Grass Airport outside Lexington, Kentucky, to show their support for a state gubernatorial candidate and to demonstrate their lack of regard for Mrs Richard Nixon, then about to leave Lexington from the airport after a public appearance in the city When the demonstration had ended, the students got into their automobiles and formed a procession of six to 10 cars along the airport access road to the main highway A state policeman, observing that one of the first cars in the entourage carried an expired Louisiana license plate, directed the driver, one Mendez, to pull off the road He complied Appellant Colten, followed by other motorists in the procession, also pulled off the highway, and Colten approached the officer to find out what was the matter The policeman explained that the Mendez car bore an expired plate and that a traffic summons would be issued Colten made some effort to enter into a conversation about the summons His theory was that Mendez may have received an extension of time in which to obtain new plates In order to avoid Colten and to complete the issuance of the summons, the policeman took Mendez to the patrol car Meanwhile, other students had left their cars and additional policemen, having completed their duties at the airport and having noticed the roadside scene, stopped their cars in the traffic lane abreast of the students' vehicles At least one officer took responsibility for directing traffic, although testimony differed as to the need for doing so Testimony also differed as to the number of policemen and students present, how many students left their cars and how many were at one time or another standing in the roadway A state police captain asked on four or five occasions that the group disperse At least five times *107 police asked Colten to leave[1] A state trooper made two requests, remarking at least once: "Now, this is none of your affair get back in your car and please move on and clear the road" In response to at least one of these requests Colten replied that he wished to make a transportation arrangement for his friend Mendez and the occupants of the Mendez car, which he understood was to be towed away Another officer asked three times that Colten depart and when Colten failed to move away he was arrested for violating Kentucky's disorderly conduct statute, Ky Rev Stat 437016 The arresting officer testified that Colten's response to the order had been to say that he intended to stay and see what might happen Colten disputed this He testified that he expressed a willingness to leave but wanted first to make a transportation arrangement At trial he added that he feared violence on the part of the police[2] The complaint and warrant charging disorderly conduct, which carries a maximum penalty of six months in jail and a fine of $500, were addressed to the Quarterly *108 Court of Fayette County, where Colten was tried, convicted, and fined $10 Exercising his right to a trial de novo in a court of general jurisdiction, Colten "appealed," as the Kentucky rules style this recourse, Ky Rule Crim Proc 1202, to the Criminal Division of the Fayette Circuit Court By consent, trial was to the court and Colten was convicted of disorderly conduct and this time fined $50 The Kentucky Court of Appeals affirmed It rejected Colten's constitutional challenges to the statute and his claim that the punishment imposed was impermissible, under North We noted probable jurisdiction I Colten was convicted of violating Ky Rev Stat 437016 (1) (f) which states: "(1) A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: "(f) Congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse " The Kentucky Court of Appeals interpreted the statute in the following way: "As reasonably construed, the statute does not prohibit the lawful exercise of any constitutional right We think that the plain meaning of the statute, in requiring that the proscribed conduct be done `with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof,' is that the specified intent must be the predominant intent Predominance can be determined either (1) from the fact that no bona fide intent to exercise a constitutional *109 right appears to have existed or (2) from the fact that the interest to be advanced by the particular exercise of a constitutional right is insignificant in comparison with the inconvenience, annoyance or alarm caused by the exercise" The evidence warranted a finding, the Kentucky court concluded, that at the time of his arrest, "Colten was not undertaking to exercise any constitutionally protected freedom" Rather, he "appears to have had no purpose other than to cause inconvenience and annoyance So the statute as applied here did not chill or stifle the exercise of any constitutional right" Based on our own examination of the record, we perceive no justification for setting aside the conclusion of the state court that when arrested appellant was not engaged in activity protected by the First Amendment Colten insists that in seeking to arrange transportation for Mendez and in observing the issuance of a traffic citation he was disseminating and receiving information But this is a strained, near-frivolous contention and we have little doubt that Colten's conduct in refusing to move on after being directed to do so was not, without more, protected by the First Amendment Nor can we believe that Colten, although he was not trespassing or disobeying any traffic regulation himself, could not be required to move on He had no constitutional right to observe the issuance of a traffic ticket or to engage the issuing officer in conversation at that time The State has a legitimate interest in enforcing its traffic laws and its officers were entitled to enforce them free from possible interference or interruption from bystanders, even those claiming a third-party interest in the transaction Here the police had cause for apprehension that a roadside strip, crowded with persons and automobiles, might expose the entourage, passing motorists, and police to the risk of accident We cannot disagree with the finding *110 below that the order to disperse was suited to the occasion We thus see nothing unconstitutional in the manner in which the statute was applied II Neither are we convinced that the statute is either impermissibly vague or broad We perceive no violation of "[t]he underlying principle that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed" United ; cf Here the statute authorized conviction for refusing to disperse with the intent of causing inconvenience, annoyance, or alarm Any person who stands in a group of persons along a highway where the police are investigating a traffic violation and seeks to engage the attention of an officer issuing a summons should understand that he could be convicted under subdivision (f) of Kentucky's statute if he fails to obey an order to move on The root of the vagueness doctrine is a rough idea of fairness It is not a principle designed to convert into a constitutional dilemma the practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited We agree with the Kentucky court when it said: "We believe that citizens who desire to obey the statute will have no difficulty in understanding it " 467 S W 2d, Colten also argues that the Kentucky statute is overbroad He relies on where the Court held unconstitutional a breach-of-peace statute construed to forbid causing agitation or *111 disquiet coupled with refusing to move-on when ordered to do so The Court invalidated the statute on the ground that it permitted conviction where the mere expression of unpopular views prompted the order that is disobeyed Colten argues that the Kentucky statute must be stricken down for the same reason As the Kentucky statute was construed by the state court, however, a crime is committed only where there is no bona fide intention to exercise a constitutional rightin which event, by definition, the statute infringes no protected speech or conductor where the interest so clearly outweighs the collective interest sought to be asserted that the latter must be deemed insubstantial The court hypothesized, for example, that one could be convicted for disorderly conduct if at a symphony concert he arose and began lecturing to the audience on leghorn chickens In so confining the reach of its statute, the Kentucky court avoided the shortcomings of the statute invalidated in the Cox Individuals may not be convicted under the Kentucky statute merely for expressing unpopular or annoying ideas The statute comes into operation only when the individual's interest in expression, judged in the light of all relevant factors, is "minuscule" compared to a particular public interest in preventing that expression or conduct at that time and place As we understand this appellant's own conduct was not immune under the First Amendment and neither is his conviction vulnerable on the ground that the statute threatens constitutionally protected conduct of others[3] *112 III Kentucky, like many other States,[4] has a two-tier system for adjudicating less serious criminal s In Kentucky, at the option of the arresting officer, those crimes classified under state law as misdemeanors[5] may be charged and tried in a so-called inferior court,[6] where, as in the normal trial setting, a defendant may choose to have a trial or to plead guilty If convicted after trial or on a guilty plea, however, he has a right to a trial de novo in a court of general criminal jurisdiction, so *113 long as he applies within the statutory time[7] The right to a new trial is absolute A defendant need not allege error in the inferior court proceeding If he seeks a new trial, the Kentucky statutory scheme contemplates that the slate be wiped clean Ky Rule Crim Proc 1206 Prosecution and defense begin anew By the same token neither the judge nor jury that determines guilt or fixes a penalty in the trial de novo is in any way bound by the inferior court's findings or judgment The is to be regarded exactly as if it had been brought there in the first instance A convicted defendant may seek review in the state appellate courts in the same manner as a person tried initially in the general criminal court Ky Rev Stat 23032 However, a defendant convicted after a trial or plea in an inferior court may not seek ordinary appellate review of the inferior court's ruling His recourse is the trial de novo While by definition two-tier systems throughout the States have in common the trial de novo feature,[8] there are differences in the kind of trial available in the inferior courts of first instance, whether known as county, municipal, police, or justice of the peace courts, or are otherwise referred to Depending upon the jurisdiction and offense charged, many such systems provide as complete protection for a criminal defendant's constitutional rights as do courts empowered to try more serious crimes Others, however, lack some of the safeguards provided in more serious criminal s Although appellant here was entitled to a six-man jury, cf which he waived, some *114 States do not provide for trial by jury,[9] even in instances where the authorized punishment would entitle the accused to such tribunal Cf US 145 Some, including Kentucky, do not record proceedings[10] and the judges may not be trained for their positions either by experience or schooling[11] Two justifications are asserted for such tribunals: first, in this day of increasing burdens on state judiciaries, these courts are designed, in the interest of both the defendant and the State, to provide speedier and less costly adjudications than may be possible in the criminal courts of general jurisdiction where the full range of constitutional guarantees is available; second, if the defendant is not satisfied with the results of his first trial he has the unconditional right to a new trial in a superior court, unprejudiced by the proceedings or the outcome in the inferior courts Colten, however, considers the Kentucky system to be infirm because the judge in a trial de novo is empowered to sentence anew and is not bound to stay within the limits of the sentence imposed by the inferior court He bases his attack both on the Due Process Clause, as interpreted in North and on the Fifth Amendment's Double Jeopardy Clause The *115 issues appellant raises have produced a division among the state courts that have considered them[12] as well as a conflict among the federal circuits[13] Colten rightly reads Pearce to forbid, following a successful appeal and reconviction, the imposition of a greater punishment than was imposed after the first trial, absent specified findings that have not been made here He insists that the Pearce rule is applicable here and that there is no relevant difference between the Pearce model and the Kentucky two-tier trial de novo system Both, he asserts, involve reconviction and resentencing, both provide the convicted defendant with the right to "appeal" and in botheven though under the Kentucky scheme the "appeal" is in reality a trial de novoa penalty for the same crime is fixed twice, with the same potential for an increased penalty upon a successful "appeal" *116 But Pearce did not turn simply on the fact of conviction, appeal, reversal, reconviction, and a greater sentence The court was there concerned with two defendants who, after their convictions had been set aside on appeal, were reconvicted for the same offenses and sentenced to longer prison terms In one the term was increased from 10 to 25 years Positing that a more severe penalty after reconviction would violate due process of law if imposed as purposeful punishment for having successfully appealed, the court concluded that such untoward sentences occurred with sufficient frequency to warrant the imposition of a prophylactic rule to ensure "that vindictiveness against a defendant for having successfully attacked his first conviction [would] play no part in the sentence he receives after a new trial " and to ensure that the apprehension of such vindictiveness does not "deter a defendant's exercise of the right to appeal or collaterally attack his first conviction " Our view of the Kentucky two-tier system of administering criminal justice, however, does not lead us to believe, and there is nothing in the record or presented in the briefs to show, that the hazard of being penalized for seeking a new trial, which underlay the holding of Pearce, also inheres in the de novo trial arrangement Nor are we convinced that defendants convicted in Kentucky's inferior courts would be deterred from seeking a second trial out of fear of judicial vindictiveness The possibility of vindictiveness, found to exist in Pearce, is not inherent in the Kentucky two-tier system We note first the obvious: that the court which conducted Colten's trial and imposed the final sentence was not the court with whose work Colten was sufficiently dissatisfied to seek a different result on appeal; and it *117 is not the court that is asked to do over what it thought it had already done correctly Nor is the de novo court even asked to find error in another court's work Rather, the Kentucky court in which Colten had the unrestricted right to have a new trial was merely asked to accord the same trial, under the same rules and procedures, available to defendants whose s are begun in that court in the first instance It would also appear that, however understandably a court of general jurisdiction might feel that the defendant who has had a due process trial ought to be satisfied with it, the de novo court in the two-tier system is much more likely to reflect the attitude of the Kentucky Court of Appeals in this when it stated that "the inferior courts are not designed or equipped to conduct error-free trials, or to insure full recognition of constitutional freedoms They are courts of convenience, to provide speedy and inexpensive means of disposition of charges of minor offenses" 467 S W 2d, at 379 We see no reason, and none is offered, to assume that the de novo court will deal any more strictly with those who insist on a trial in the superior court after conviction in the Quarterly Court than it would with those defendants whose s are filed originally in the superior court and who choose to put the State to its proof in a trial subject to constitutional guarantees It may often be that the superior court will impose a punishment more severe than that received from the inferior court But it no more follows that such a sentence is a vindictive penalty for seeking a superior court trial than that the inferior court imposed a lenient penalty The trial de novo represents a completely fresh determination of guilt or innocence It is not an appeal on the record As far as we know, the record from the lower court is not before the superior court and is irrelevant *118 to its proceedings In all likelihood, the trial de novo court is not even informed of the sentence imposed in the inferior court and can hardly be said to have "enhanced" the sentence[14] In Kentucky, disorderly conduct is punishable by six months in jail and a fine of $500 The inferior court fined Colten $10, the trial de novo court $50 We have no basis for concluding that the latter court did anything other than invoke the normal processes of a criminal trial and then sentence in accordance with the normal standards applied in that court to s tried there in the first instance We cannot conclude, on the basis of the present record or our understanding, that the prophylactic rule announced in Pearce is appropriate in the context of the system by which Kentucky administers criminal justice in the less serious criminal s It is suggested, however, that the sentencing strictures imposed by Pearce are essential in order to minimize an asserted unfairness to criminal defendants who must endure a trial in an inferior court with less-than-adequate protections in order to secure a trial comporting completely with constitutional guarantees We are not persuaded, however, that the Kentucky arrangement for dealing with the less serious offenses disadvantages defendants any more or any less than trials conducted in a court of general jurisdiction in the first instance, as long as the latter are always available Proceedings in the inferior courts are simple and speedy, and, if the results in Colten's are any evidence, the penalty is not characteristically severe Such proceedings offer a defendant the opportunity to learn about the prosecution's and, if he chooses, he need not reveal his own He may *119 also plead guilty without a trial and promptly secure a de novo trial in a court of general criminal jurisdiction He cannot, and will not, face the realistic threat of a prison sentence in the inferior court without having the help of counsel, whose advice will also be available in determining whether to seek a new trial, with the slate wiped clean, or to accept the penalty imposed by the inferior court The State has no such options Should it not prevail in the lower court, the is terminated, whereas the defendant has the choice of beginning anew In reality his choices are to accept the decision of the judge and the sentence imposed in the inferior court or to reject what in effect is no more than an offer in settlement of his and seek the judgment of judge or jury in the superior court, with sentence to be determined by the full record made in that court We cannot say that the Kentucky trial de novo system, as such, is unconstitutional or that it presents hazards warranting the restraints called for in North particularly since such restraints might, to the detriment of both defendant and State, diminish the likelihood that inferior courts would impose lenient sentences whose effect would be to limit the discretion of a superior court judge or jury if the defendant is retried and found guilty Colten's alternative contention is that the Double Jeopardy Clause prohibits the imposition of an enhanced penalty upon reconviction The Pearce Court rejected the same contention in the context of that 395 US, at 719-720 Colten urges that his claim is stronger because the Kentucky system forces a defendant to expose himself to jeopardy as a price for securing a trial that comports with the Constitution That was, of course, the situation in Pearce, where reversal of the first conviction was for constitutional error The contention also ignores that a defendant can bypass the inferior court simply by pleading guilty and erasing immediately *120 thereafter any consequence that would otherwise follow from tendering the plea The judgment of the Kentucky Court of Appeals is Affirmed MR |
Justice Rehnquist | majority | false | Parker v. Levy | 1974-06-19T00:00:00 | null | https://www.courtlistener.com/opinion/109077/parker-v-levy/ | https://www.courtlistener.com/api/rest/v3/clusters/109077/ | 1,974 | 1973-149 | 1 | 5 | 3 | Appellee Howard Levy, a physician, was a captain in the Army stationed at Fort Jackson, South Carolina. *736 He had entered the Army under the so-called "Berry Plan,"[1] under which he agreed to serve for two years in the Armed Forces if permitted first to complete his medical training. From the time he entered on active duty in July 1965 until his trial by court-martial, he was assigned as Chief of the Dermatological Service of the United States Army Hospital at Fort Jackson. On June 2, 1967, appellee was convicted by a general court-martial of violations of Arts. 90, 133, and 134 of the Uniform Code of Military Justice, and sentenced to dismissal from the service, forfeiture of all pay and allowances, and confinement for three years at hard labor.
The facts upon which his conviction rests are virtually undisputed. The evidence admitted at his court-martial trial showed that one of the functions of the hospital to which appellee was assigned was that of training Special Forces aide men. As Chief of the Dermatological Service, appellee was to conduct a clinic for those aide men. In the late summer of 1966, it came to the attention of the hospital commander that the dermatology training of the students was unsatisfactory. After investigating the program and determining that appellee had totally neglected his duties, the commander called appellee to his office and personally handed him a written order to conduct the training. Appellee read the order, said that he understood it, but declared that he would not obey it because of his medical ethics. Appellee persisted in his refusal to obey the order, and later reviews of the program established that the training was still not being carried out.
During the same period of time, appellee made several public statements to enlisted personnel at the post, of which the following is representative:
"The United States is wrong in being involved in *737 the Viet Nam War. I would refuse to go to Viet Nam if ordered to do so. I don't see why any colored soldier would go to Viet Nam: they should refuse to go to Viet Nam and if sent should refuse to fight because they are discriminated against and denied their freedom in the United States, and they are sacrificed and discriminated against in Viet Nam by being given all the hazardous duty and they are suffering the majority of casualties. If I were a colored soldier I would refuse to go to Viet Nam and if I were a colored soldier and were sent I would refuse to fight. Special Forces personnel are liars and thieves and killers of peasants and murderers of women and children."
Appellee's military superiors originally contemplated nonjudicial proceedings against him under Art. 15 of the Uniform Code of Military Justice, 10 U.S. C. § 815, but later determined that court-martial proceedings were appropriate. The specification under Art. 90 alleged that appellee willfully disobeyed the hospital commandant's order to establish the training program, in violation of that article, which punishes anyone subject to the Uniform Code of Military Justice who "willfully disobeys a lawful command of his superior commissioned officer."[2] Statements to enlisted personnel were *738 listed as specifications under the charges of violating Arts. 133 and 134 of the Code. Article 133 provides for the punishment of "conduct unbecoming an officer and a gentleman,"[3] while Art. 134 proscribes, inter alia, "all disorders and neglects to the prejudice of good order and discipline in the armed forces."[4]
The specification under Art. 134 alleged that appellee "did, at Fort Jackson, South Carolina, . . . with design to promote disloyalty and disaffection among the troops, publicly utter [certain] statements to divers enlisted personnel at divers times . . . ."[5] The specification under *739 Art. 133 alleged that appellee did "while in the performance of his duties at the United States Army Hospital . . . wrongfully and dishonorably" make statements variously described as intemperate, defamatory, provoking, disloyal, contemptuous, and disrespectful to Special Forces personnel and to enlisted personnel who were patients or under his supervision.[6]
*740 Appellee was convicted by the court-martial, and his conviction was sustained on his appeals within the military.[7] After he had exhausted this avenue of relief, he sought federal habeas corpus in the United States District Court for the Middle District of Pennsylvania, challenging his court-martial conviction on a number of grounds. The District Court, on the basis of the voluminous record of the military proceedings and the argument of counsel, denied relief. It held that the "various articles of the Uniform Code of Military Justice are not unconstitutional for vagueness," citing several decisions *741 of the United States Court of Military Appeals.[8] The court rejected the balance of appellee's claims without addressing them individually, noting that the military tribunals had given fair consideration to them and that the role of the federal courts in reviewing court-martial proceedings was a limited one.
The Court of Appeals reversed, holding in a lengthy opinion that Arts. 133 and 134 are void for vagueness. 478 F.2d 772 (CA3 1973). The court found little difficulty in concluding that "as measured by contemporary standards of vagueness applicable to statutes and ordinances governing civilians," the general articles "do not pass constitutional muster." It relied on such cases as Grayned v. City of Rockford, 408 U.S. 104 (1972); Papachristou v. City of Jacksonville, 405 U.S. 156 (1972); Giaccio v. Pennsylvania, 382 U.S. 399 (1966); Coates v. City of Cincinnati, 402 U.S. 611 (1971), and Gelling v. Texas, 343 U.S. 960 (1952). The Court of Appeals did not rule that appellee was punished for doing things he could not reasonably have known constituted conduct proscribed by Art. 133 or 134. Indeed, it recognized that his conduct fell within one of the examples of Art. 134 violations contained in the Manual for Courts-Martial, promulgated by the President by Executive Order.[9] Nonetheless, relying chiefly on Gooding v. Wilson, 405 U.S. 518 (1972), the Court found the possibility that Arts. 133 and 134 would be applied to future conduct of others as to which there was insufficient warning, or which was within the area of protected First Amendment expression, was enough to give *742 appellee standing to challenge both articles on their face. While it acknowledged that different standards might in some circumstances be applicable in considering vagueness challenges to provisions which govern the conduct of members of the Armed Forces, the Court saw in the case of Arts. 133 and 134 no "countervailing military considerations which justify the twisting of established standards of due process in order to hold inviolate these articles, so clearly repugnant under current constitutional values." Turning finally to appellee's conviction under Art. 90, the Court held that the joint consideration of Art. 90 charges with the charges under Arts. 133 and 134 gave rise to a "reasonable possibility" that appellee's right to a fair trial was prejudiced, so that a new trial was required.
Appellants appealed to this Court pursuant to 28 U.S. C. § 1252. We set the case for oral argument, and postponed consideration of the question of our jurisdiction to the hearing on the merits. 414 U.S. 973 (1973).[10]
*743 I
This Court has long recognized that the military is, by necessity, a specialized society separate from civilian society. We have also recognized that the military has, again by necessity, developed laws and traditions of its own during its long history. The differences between the military and civilian communities result from the fact that "it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise." United States ex rel. Toth v. Quarles, 350 U.S. 11, 17 (1955). In In re Grimley, 137 U.S. 147, 153 (1890), the Court observed: *744 "An army is not a deliberative body. It is the executive arm. Its law is that of obedience. No question can be left open as to the right to command in the officer, or the duty of obedience in the soldier." More recently we noted that "[t]he military constitutes a specialized community governed by a separate discipline from that of the civilian," Orloff v. Willoughby, 345 U.S. 83, 94 (1953), and that "the rights of men in the armed forces must perforce be conditioned to meet certain overriding demands of discipline and duty . . . ." Burns v. Wilson, 346 U.S. 137, 140 (1953) (plurality opinion). We have also recognized that a military officer holds a particular position of responsibility and command in the Armed Forces:
"The President's commission . . . recites that `reposing special trust and confidence in the patriotism, valor, fidelity and abilities' of the appointee he is named to the specified rank during the pleasure of the President." Orloff v. Willoughby, supra, at 91.
Just as military society has been a society apart from civilian society, so "[m]ilitary law . . . is a jurisprudence which exists separate and apart from the law which governs in our federal judicial establishment." Burns v. Wilson, supra, at 140. And to maintain the discipline essential to perform its mission effectively, the military has developed what "may not unfitly be called the customary military law" or "general usage of the military service." Martin v. Mott, 12 Wheat. 19, 35 (1827). As the opinion in Martin v. Mott demonstrates, the Court has approved the enforcement of those military customs and usages by courts-martial from the early days of this Nation:
". . . Courts Martial, when duly organized, are bound to execute their duties, and regulate their modes of proceeding, in the absence of positive enactments. *745 Upon any other principle, Courts Martial would be left without any adequate means to exercise the authority confided to them: for there could scarcely be framed a positive code to provide for the infinite variety of incidents applicable to them." Id., at 35-36.
An examination of the British antecedents of our military law shows that the military law of Britain had long contained the forebears of Arts. 133 and 134 in remarkably similar language. The Articles of the Earl of Essex (1642) provided that "[a]ll other faults, disorders and offenses, not mentioned in these Articles, shall be punished according to the general customs and laws of war." One of the British Articles of War of 1765 made punishable "all Disorders or Neglects . . . to the Prejudice of good Order and Military Discipline . . ." that were not mentioned in the other articles.[11] Another of those articles provided:
"Whatsoever Commissioned Officer shall be convicted before a General Court-martial, of behaving in a scandalous infamous Manner, such as is unbecoming the Character of an Officer and a Gentleman, shall be discharged from Our Service."[12]
In 1775 the Continental Congress adopted this last article, along with 68 others for the governance of its army.[13] The following year it was resolved by the Congress that "the committee on spies be directed to revise the rules and articles of war; this being a committee of five, consisting of John Adams, Thomas Jefferson, John *746 Rutledge, James Wilson and R. R. Livingston . . . ."[14] The article was included in the new set of articles prepared by the Committee, which Congress adopted on September 20, 1776.[15] After being once more re-enacted without change in text in 1786, it was revised and expanded in 1806, omitting the terms "scandalous" and "infamous," so as to read:
"Any commissioned officer convicted before a general court-martial of conduct unbecoming an officer and a gentleman, shall be dismissed [from] the service."[16]
From 1806, it remained basically unchanged through numerous congressional re-enactments until it was enacted as Art. 133 of the Uniform Code of Military Justice in 1951.
The British article punishing "all Disorders and Neglects. . ." was also adopted by the Continental Congress in 1775 and re-enacted in 1776.[17] Except for a revision in 1916, which added the clause punishing "all conduct of a nature to bring discredit upon the military service,"[18] substantially the same language was preserved throughout the various re-enactments of this article too, until in 1951 it was enacted as Art. 134 of the Uniform Code of Military Justice.
Decisions of this Court during the last century have recognized that the longstanding customs and usages *747 of the services impart accepted meaning to the seemingly imprecise standards of Arts. 133 and 134. In Dynes v. Hoover, 20 How. 65 (1857), this Court upheld the Navy's general article, which provided that "[a]ll crimes committed by persons belonging to the navy, which are not specified in the foregoing articles, shall be punished according to the laws and customs in such cases at sea." The Court reasoned:
"[W]hen offences and crimes are not given in terms or by definition, the want of it may be supplied by a comprehensive enactment, such as the 32d article of the rules for the government of the navy, which means that courts martial have jurisdiction of such crimes as are not specified, but which have been recognized to be crimes and offences by the usages in the navy of all nations, and that they shall be punished according to the laws and customs of the sea. Notwithstanding the apparent indeterminateness of such a provision, it is not liable to abuse; for what those crimes are, and how they are to be punished, is well known by practical men in the navy and army, and by those who have studied the law of courts martial, and the offences of which the different courts martial have cognizance." Id., at 82.
In Smith v. Whitney, 116 U.S. 167 (1886), this Court refused to issue a writ of prohibition against Smith's court-martial trial on charges of "[s]candalous conduct tending to the destruction of good morals" and "[c]ulpable inefficiency in the performance of duty." The Court again recognized the role of "the usages and customs of war" and "old practice in the army" in the interpretation of military law by military tribunals. Id., at 178-179.
In United States v. Fletcher, 148 U.S. 84 (1893), the Court considered a court-martial conviction under what is *748 now Art. 133, rejecting Captain Fletcher's claim that the court-martial could not properly have held that his refusal to pay a just debt was "conduct unbecoming an officer and a gentleman." The Court of Claims decision which the Court affirmed in Fletcher stressed the military's "higher code termed honor, which holds its society to stricter accountability"[19] and with which those trained only in civilian law are unfamiliar. In Swaim v. United States, 165 U.S. 553 (1897), the Court affirmed another Court of Claims decision, this time refusing to disturb a court-martial conviction for conduct "to the prejudice of good order and military discipline" in violation of the Articles of War. The Court recognized the role of "unwritten law or usage" in giving meaning to the language of what is now Art. 134. In rejecting Swaim's argument that the evidence failed to establish an offense under the article, the Court said:
"[T]his is the very matter that falls within the province of courts-martial, and in respect to which their conclusions cannot be controlled or reviewed by the civil courts. As was said in Smith v. Whitney, 116 U.S. 178, `of questions not depending upon the construction of the statutes, but upon unwritten military law or usage, within the jurisdiction of courts-martial, military or naval officers, from their training and experience in the service, are more competent judges than the courts of common law.' " 165 U.S., at 562.
The Court of Claims had observed that cases involving "conduct to the prejudice of good order and military discipline," as opposed to conduct unbecoming an officer, "are still further beyond the bounds of ordinary judicial judgment, for they are not measurable by our innate *749 sense of right and wrong, of honor and dishonor, but must be gauged by an actual knowledge and experience of military life, its usages and duties."[20]
II
The differences noted by this settled line of authority, first between the military community and the civilian community, and second between military law and civilian law, continue in the present day under the Uniform Code of Military Justice. That Code cannot be equated to a civilian criminal code. It, and the various versions of the Articles of War which have preceded it, regulate aspects of the conduct of members of the military which in the civilian sphere are left unregulated. While a civilian criminal code carves out a relatively small segment of potential conduct and declares it criminal, the Uniform Code of Military Justice essays more varied regulation of a much larger segment of the activities of the more tightly knit military community. In civilian life there is no legal sanctioncivil or criminalfor failure to behave as an officer and a gentleman; in the military world, Art. 133 imposes such a sanction on a commissioned officer. The Code likewise imposes other sanctions for conduct that in civilian life is not subject to criminal penalties: disrespect toward superior commissioned officers, Art. 89, 10 U.S. C. § 889; cruelty toward, or oppression or maltreatment of subordinates, Art. 93, 10 U.S. C. § 893; negligent damaging, destruction, or wrongful disposition of military property of the United States, Art. 108, 10 U.S. C. § 908; improper hazarding of a vessel, Art. 110, 10 U.S. C. § 910; drunkenness on duty, Art. 112, 10 U.S. C. § 912; and malingering, Art. 115, 10 U.S. C. § 915.
But the other side of the coin is that the penalties provided in the Code vary from death and substantial *750 penal confinement at one extreme to forms of administrative discipline which are below the threshold of what would normally be considered a criminal sanction at the other. Though all of the offenses described in the Code are punishable "as a court-martial may direct," and the accused may demand a trial by court-martial,[21] Art. 15 of the Code also provides for the imposition of nonjudicial "disciplinary punishments" for minor offenses without the intervention of a court-martial. 10 U.S. C. § 815. The punishments imposable under that article are of a limited nature. With respect to officers, punishment may encompass suspension of duty, arrest in quarters for not more than 30 days, restriction for not more than 60 days, and forfeiture of pay for a limited period of time. In the case of enlisted men, such punishment may additionally include, among other things, reduction to the next inferior pay grade, extra fatigue duty, and correctional custody for not more than seven consecutive days. Thus, while legal proceedings actually brought before a court-martial are prosecuted in the name of the Government, and the accused has the right to demand that he be proceeded against in this manner before any sanctions may be imposed upon him, a range of minor sanctions for lesser infractions are often imposed administratively. Forfeiture of pay, reduction in rank, and even dismissal from the service bring to mind the law of labor-management relations as much as the civilian criminal law.
In short, the Uniform Code of Military Justice regulates a far broader range of the conduct of military personnel than a typical state criminal code regulates of the conduct of civilians; but at the same time the enforcement of that Code in the area of minor offenses *751 is often by sanctions which are more akin to administrative or civil sanctions than to civilian criminal ones.
The availability of these lesser sanctions is not surprising in view of the different relationship of the Government to members of the military. It is not only that of lawgiver to citizen, but also that of employer to employee. Indeed, unlike the civilian situation, the Government is often employer, landlord, provisioner, and lawgiver rolled into one. That relationship also reflects the different purposes of the two communities. As we observed in In re Grimley, 137 U. S., at 153, the military "is the executive arm" whose "law is that of obedience." While members of the military community enjoy many of the same rights and bear many of the same burdens as do members of the civilian community, within the military community there is simply not the same autonomy as there is in the larger civilian community. The military establishment is subject to the control of the civilian Commander in Chief and the civilian departmental heads under him, and its function is to carry out the policies made by those civilian superiors.
Perhaps because of the broader sweep of the Uniform Code, the military makes an effort to advise its personnel of the contents of the Uniform Code, rather than depending on the ancient doctrine that everyone is presumed to know the law. Article 137 of the Uniform Code, 10 U.S. C. § 937, requires that the provisions of the Code be "carefully explained to each enlisted member at the time of his entrance on active duty, or within six days thereafter" and that they be "explained again after he has completed six months of active duty . . . ." Thus the numerically largest component of the services, the enlisted personnel, who might be expected to be a good deal less familiar with the Uniform Code than commissioned officers, are required by its terms *752 to receive instructions in its provisions. Article 137 further provides that a complete text of the Code and of the regulations prescribed by the President "shall be made available to any person on active duty, upon his request, for his personal examination."
With these very significant differences between military law and civilian law and between the military community and the civilian community in mind, we turn to appellee's challenges to the constitutionality of Arts. 133 and 134.
III
Appellee urges that both Art. 133 and Art. 134 (the general article) are "void for vagueness" under the Due Process Clause of the Fifth Amendment and overbroad in violation of the First Amendment. We have recently said of the vagueness doctrine:
"The doctrine incorporates notions of fair notice or warning. Moreover, it requires legislatures to set reasonably clear guidelines for law enforcement officials and triers of fact in order to prevent `arbitrary and discriminatory enforcement.' Where a statute's literal scope, unaided by a narrowing state court interpretation, is capable of reaching expression sheltered by the First Amendment, the doctrine demands a greater degree of specificity than in other contexts." Smith v. Goguen, 415 U.S. 566, 572-573 (1974).
Each of these articles has been construed by the United States Court of Military Appeals or by other military authorities in such a manner as to at least partially narrow its otherwise broad scope.
The United States Court of Military Appeals has stated that Art. 134 must be judged "not in vacuo, but in the context in which the years have placed it," United States v. Frantz, 2 U.S. C. M. A. 161, 163, 7 *753 C. M. R. 37, 39 (1953). Article 134 does not make "every irregular, mischievous, or improper act a court-martial offense," United States v. Sadinsky, 14 U.S. C. M. A. 563, 565, 34 Cow. M. R. 343, 345 (1964), but its reach is limited to conduct that is " `directly and palpably as distinguished from indirectly and remotelyprejudicial to good order and discipline.' " Ibid.; United States v. Holiday, 4 U.S. C. M. A. 454, 456, 16 Cow. M. R. 28, 30 (1954). It applies only to calls for active opposition to the military policy of the United States, United States v. Priest, 21 U.S. C. M. A. 564, 45 Cow. M. R. 338 (1972), and does not reach all "[d]isagreement with, or objection to, a policy of the Government." United States v. Harvey, 19 U.S. C. M. A. 539, 544, 42 Cow. M. R. 141, 146 (1971).
The Manual for Courts-Martial restates these limitations on the scope of Art. 134.[22] It goes on to say that "[c]ertain disloyal statements by military personnel" may be punishable under Art. 134. "Examples are utterances designed to promote disloyalty or disaffection among troops, as praising the enemy, attacking the war aims of the United States, or denouncing our form of government."[23] Extensive additional interpretative materials are contained in the portions of the Manual devoted to Art. 134, which describe more than sixty illustrative offenses.
The Court of Military Appeals has likewise limited the scope of Art. 133. Quoting from W. Winthrop, Military Law and Precedents 711-712 (2d ed. 1920), that court has stated:
" ` ". . . To constitute therefore the conduct here denounced, the act which forms the basis of the charge must have a double significance and effect. *754 Though it need not amount to a crime, it must offend so seriously against law, justice, morality or decorum as to expose to disgrace, socially or as a man, the offender, and at the same time must be of such a nature or committed under such circumstances as to bring dishonor or disrepute upon the military profession which he represents." ' " United States v. Howe, 17 U.S. C. M. A. 165, 177-178, 37 Cow. M. R. 429, 441-442 (1967).
The effect of these constructions of Arts. 133 and 134 by the Court of Military Appeals and by other military authorities has been twofold: It has narrowed the very broad reach of the literal language of the articles, and at the same time has supplied considerable specificity by way of examples of the conduct which they cover. It would be idle to pretend that there are not areas within the general confines of the articles' language which have been left vague despite these narrowing constructions. But even though sizable areas of uncertainty as to the coverage of the articles may remain after their official interpretation by authoritative military sources, further content may be supplied even in these areas by less formalized custom and usage. Dynes v. Hoover, 20 How. 65 (1857). And there also cannot be the slightest doubt under the military precedents that there is a substantial range of conduct to which both articles clearly apply without vagueness or imprecision. It is within that range that appellee's conduct squarely falls, as the Court of Appeals recognized:
"Neither are we unmindful that the Manual for Courts-Martial offers as an example of an offense under Article 134, `praising the enemy, attacking the war aims of the United States, or denouncing our form of government.' With the possible exception of the statement that `Special Forces personnel are liars *755 and thieves and killers of peasants and murderers of women and children,' it would appear that each statement for which [Levy] was court-martialed could fall within the example given in the Manual." 478 F.2d, at 794.
The Court of Appeals went on to hold, however, that even though Levy's own conduct was clearly prohibited, the void-for-vagueness doctrine conferred standing upon him to challenge the imprecision of the language of the articles as they might be applied to hypothetical situations outside the considerable area within which their applicability was similarly clear.
We disagree with the Court of Appeals both in its approach to this question and in its resolution of it. This Court has on more than one occasion invalidated statutes under the Due Process Clause of the Fifth or Fourteenth Amendment because they contained no standard whatever by which criminality could be ascertained, and the doctrine of these cases has subsequently acquired the shorthand description of "void for vagueness." Lanzetta v. New Jersey, 306 U.S. 451 (1939); Winters v. New York, 333 U.S. 507 (1948). In these cases, the criminal provision is vague "not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all." Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971).
But the Court of Appeals found in this case, and we agree, that Arts. 133 and 134 are subject to no such sweeping condemnation. Levy had fair notice from the language of each article that the particular conduct which he engaged in was punishable. This is a case, then, of the type adverted to in Smith v. Goguen, in which the statutes "by their terms or as authoritatively *756 construed apply without question to certain activities, but whose application to other behavior is uncertain." 415 U.S., at 578. The result of the Court of Appeals' conclusion that Levy had standing to challenge the vagueness of these articles as they might be hypothetically applied to the conduct of others, even though he was squarely within their prohibitions, may stem from a blending of the doctrine of vagueness with the doctrine of overbreadth, but we do not believe it is supported by prior decisions of this Court.
We have noted in Smith v. Goguen, id., at 573, that more precision in drafting may be required because of the vagueness doctrine in the case of regulation of expression. For the reasons which differentiate military society from civilian society, we think Congress is permitted to legislate both with greater breadth and with greater flexibility when prescribing the rules by which the former shall be governed than it is when prescribing rules for the latter. But each of these differentiations relates to how strict a test of vagueness shall be applied in judging a particular criminal statute. None of them suggests that one who has received fair warning of the criminality of his own conduct from the statute in question is nonetheless entitled to attack it because the language would not give similar fair warning with respect to other conduct which might be within its broad and literal ambit. One to whose conduct a statute clearly applies may not successfully challenge it for vagueness.
Because of the factors differentiating military society from civilian society, we hold that the proper standard of review for a vagueness challenge to the articles of the Code is the standard which applies to criminal statutes regulating economic affairs. Clearly, that standard is *757 met here, for as the Court stated in United States v. National Dairy Corp., 372 U.S. 29, 32-33 (1963):
"The strong presumptive validity that attaches to an Act of Congress has led this Court to hold many times that statutes are not automatically invalidated as vague simply because difficulty is found in determining whether certain marginal offenses fall within their language. E. g., Jordan v. De George, 341 U.S. 223, 231 (1951), and United States v. Petrillo, 332 U.S. 1, 7 (1947). Indeed, we have consistently sought an interpretation which supports the constitutionality of legislation. E. g., United States v. Rumely, 345 U.S. 41, 47 (1953); Crowell v. Benson, 285 U.S. 22, 62 (1932); see Screws v. United States, 325 U.S. 91 (1945).
"Void for vagueness simply means that criminal responsibility should not attach where one could not reasonably understand that his contemplated conduct is proscribed. United States v. Harriss, 347 U.S. 612, 617 (1954). In determining the sufficiency of the notice a statute must of necessity be examined in the light of the conduct with which a defendant is charged. Robinson v. United States, 324 U.S. 282 (1945)."
Since appellee could have had no reasonable doubt that his public statements urging Negro enlisted men not to go to Vietnam if ordered to do so were both "unbecoming an officer and a gentleman," and "to the prejudice of good order and discipline in the armed forces," in violation of the provisions of Arts. 133 and 134, respectively, his challenge to them as unconstitutionally vague under the Due Process Clause of the Fifth Amendment must fail.
We likewise reject appellee's contention that Arts. 133 and 134 are facially invalid because of their "overbreadth." *758 In Gooding v. Wilson, 405 U. S., at 520-521, the Court said:
"It matters not that the words appellee used might have been constitutionally prohibited under a narrowly and precisely drawn statute. At least when statutes regulate or proscribe speech and when `no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution,' Dombrowski v. Pfister, 380 U.S. 479, 491 (1965), the transcendent value to all society of constitutionally protected expression is deemed to justify allowing `attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity'. . . ."
While the members of the military are not excluded from the protection granted by the First Amendment, the different character of the military community and of the military mission requires a different application of those protections. The fundamental necessity for obedience, and the consequent necessity for imposition of discipline, may render permissible within the military that which would be constitutionally impermissible outside it. Doctrines of First Amendment overbreadth asserted in support of challenges to imprecise language like that contained in Arts. 133 and 134 are not exempt from the operation of these principles. The United States Court of Military Appeals has sensibly expounded the reason for this different application of First Amendment doctrines in its opinion in United States v. Priest, 21 U.S. C. M. A., at 570, 45 Cow. M. R., at 344:
"In the armed forces some restrictions exist for reasons that have no counterpart in the civilian *759 community. Disrespectful and contemptuous speech, even advocacy of violent change, is tolerable in the civilian community, for it does not directly affect the capacity of the Government to discharge its responsibilities unless it both is directed to inciting imminent lawless action and is likely to produce such action. Brandenburg v. Ohio, [395 U.S. 444 (1969)]. In military life, however, other considerations must be weighed. The armed forces depend on a command structure that at times must commit men to combat, not only hazarding their lives but ultimately involving the security of the Nation itself. Speech that is protected in the civil population may nonetheless undermine the effectiveness of response to command. If it does, it is constitutionally unprotected. United States v. Gray, [20 U.S. C. M. A. 63, 42 Cow. M. R. 255 (1970)]."
In Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973), we said that "[e]mbedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court." We further commented in that case that "[i]n the past, the Court has recognized some limited exceptions to these principles, but only because of the most `weighty countervailing policies.' " Id., at 611. One of those exceptions "has been carved out in the area of the First Amendment." Ibid. In the First Amendment context attacks have been permitted "on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity," Dombrowski v. Pfister, 380 U.S. 479, 486 (1965).
*760 This Court has, however, repeatedly expressed its reluctance to strike down a statute on its face where there were a substantial number of situations to which it might be validly applied. Thus, even if there are marginal applications in which a statute would infringe on First Amendment values, facial invalidation is inappropriate if the "remainder of the statute . . . covers a whole range of easily identifiable and constitutionally proscribable . . . conduct . . . ." CSC v. Letter Carriers, 413 U.S. 548, 580-581 (1973). And the Court recognized in Broadrick, supra, that "where conduct and not merely speech is involved" the overbreadth must "not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." 413 U.S., at 615. Here, as the Manual makes clear, both Art. 133 and Art. 134 do prohibit a "whole range of easily identifiable and constitutionally proscribable . . . conduct."
Both Broadrick and Letter Carriers involved basically noncriminal sanctions imposed on federal and state employees who were otherwise civilians. The Uniform Code of Military Justice applies a series of sanctions, varying from severe criminal penalties to administratively imposed minor sanctions, upon members of the military. However, for the reasons dictating a different application of First Amendment principles in the military context described above, we think that the " `weighty countervailing policies,' " Broadrick, supra, at 611, which permit the extension of standing in First Amendment cases involving civilian society, must be accorded a good deal less weight in the military context.
There is a wide range of the conduct of military personnel to which Arts. 133 and 134 may be applied without infringement of the First Amendment. While there may lurk at the fringes of the articles, even in the light of their narrowing construction by the United *761 States Court of Military Appeals, some possibility that conduct which would be ultimately held to be protected by the First Amendment could be included within their prohibition, we deem this insufficient to invalidate either of them at the behest of appellee. His conduct, that of a commissioned officer publicly urging enlisted personnel to refuse to obey orders which might send them into combat, was unprotected under the most expansive notions of the First Amendment. Articles 133 and 134 may constitutionally prohibit that conduct, and a sufficiently large number of similar or related types of conduct so as to preclude their invalidation for overbreadth.
IV
Appellee urges that should we disagree with the Court of Appeals as to the constitutionality of Arts. 133 and 134, we should nonetheless affirm its judgment by invalidating his conviction under Art. 90. He contends that to carry out the hospital commandant's order to train aide men in dermatology would have constituted participation in a war crime, and that the commandant gave the order in question, knowing that it would be disobeyed, for the sole purpose of increasing the punishment which could be imposed upon appellee. The Court of Appeals observed that each of these defenses was recognized under the Uniform Code of Military Justice, but had been resolved against appellee on a factual basis by the court-martial which convicted him. The court went on to say that:
"In isolation, these factual determinations adverse to appellant under an admittedly valid article are not of constitutional significance and resultantly, are beyond our scope of review." 478 F.2d, at 797.
See Whelchel v. McDonald, 340 U.S. 122 (1950). We agree with the Court of Appeals.
*762 Appellee in his brief here mounts a number of alternative attacks on the sentence imposed by the court-martial, attacks which were not treated by the Court of Appeals in its opinion in this case. To the extent that these points were properly presented to the District Court and preserved on appeal to the Court of Appeals, and to the extent that they are open on federal habeas corpus review of court-martial convictions under Burns v. Wilson, 346 U.S. 137 (1953), we believe they should be addressed by the Court of Appeals in the first instance.
Reversed.
MR. JUSTICE MARSHALL took no part in the consideration or decision of this case.
MR. | Appellee Howard Levy, a physician, was a captain in the Army stationed at Fort Jackson, South Carolina. *36 He had entered the Army under the so-called "Berry Plan,"[1] under which he agreed to serve for two years in the Armed Forces if permitted first to complete his medical training. From the time he entered on active duty in July 1965 until his trial by court-martial, he was assigned as Chief of the Dermatological Service of the United States Army Hospital at Fort Jackson. On June 2, 196, appellee was convicted by a general court-martial of violations of Arts. 90, 133, and 134 of the Uniform Code of Military Justice, and sentenced to dismissal from the service, forfeiture of all pay and allowances, and confinement for three years at hard labor. The facts upon which his conviction rests are virtually undisputed. The evidence admitted at his court-martial trial showed that one of the functions of the hospital to which appellee was assigned was that of training Special Forces aide men. As Chief of the Dermatological Service, appellee was to conduct a clinic for those aide men. In the late summer of 1966, it came to the attention of the hospital commander that the dermatology training of the students was unsatisfactory. After investigating the program and determining that appellee had totally neglected his duties, the commander called appellee to his office and personally handed him a written order to conduct the training. Appellee read the order, said that he understood it, but declared that he would not obey it because of his medical ethics. Appellee persisted in his refusal to obey the order, and later reviews of the program established that the training was still not being carried out. During the same period of time, appellee made several public statements to enlisted personnel at the post, of which the following is representative: "The United States is wrong in being involved in *3 the Viet Nam War. I would refuse to go to Viet Nam if ordered to do so. I don't see why any colored soldier would go to Viet Nam: they should refuse to go to Viet Nam and if sent should refuse to fight because they are discriminated against and denied their freedom in the United States, and they are sacrificed and discriminated against in Viet Nam by being given all the hazardous duty and they are suffering the majority of casualties. If I were a colored soldier I would refuse to go to Viet Nam and if I were a colored soldier and were sent I would refuse to fight. Special Forces personnel are liars and thieves and killers of peasants and murderers of women and children." Appellee's military superiors originally contemplated nonjudicial proceedings against him under Art. 15 of the Uniform Code of Military Justice, 10 U.S. C. 815, but later determined that court-martial proceedings were appropriate. The specification under Art. 90 alleged that appellee willfully disobeyed the hospital commandant's order to establish the training program, in violation of that article, which punishes anyone subject to the Uniform Code of Military Justice who "willfully disobeys a lawful command of his superior commissioned officer."[2] Statements to enlisted personnel were *38 listed as specifications under the charges of violating Arts. 133 and 134 of the Code. Article 133 provides for the punishment of "conduct unbecoming an officer and a gentleman,"[3] while Art. 134 proscribes, inter alia, "all disorders and neglects to the prejudice of good order and discipline in the armed forces."[4] The specification under Art. 134 alleged that appellee "did, at Fort Jackson, South Carolina, with design to promote disloyalty and disaffection among the troops, publicly utter [certain] statements to divers enlisted personnel at divers times"[5] The specification under *39 Art. 133 alleged that appellee did "while in the performance of his duties at the United States Army Hospital wrongfully and dishonorably" make statements variously described as intemperate, defamatory, provoking, disloyal, contemptuous, and disrespectful to Special Forces personnel and to enlisted personnel who were patients or under his supervision.[6] *40 Appellee was convicted by the court-martial, and his conviction was sustained on his appeals within the military.[] After he had exhausted this avenue of relief, he sought federal habeas corpus in the United States District Court for the Middle District of Pennsylvania, challenging his court-martial conviction on a number of grounds. The District Court, on the basis of the voluminous record of the military proceedings and the argument of counsel, denied relief. It held that the "various articles of the Uniform Code of Military Justice are not unconstitutional for vagueness," citing several decisions *41 of the United States Court of Military Appeals.[8] The court rejected the balance of appellee's claims without addressing them individually, noting that the military tribunals had given fair consideration to them and that the role of the federal courts in reviewing court-martial proceedings was a limited one. The Court of Appeals reversed, holding in a lengthy opinion that Arts. 133 and 134 are void for vagueness. The court found little difficulty in concluding that "as measured by contemporary standards of vagueness applicable to statutes and ordinances governing civilians," the general articles "do not pass constitutional muster." It relied on such cases as ; ; ; and The Court of Appeals did not rule that appellee was punished for doing things he could not reasonably have known constituted conduct proscribed by Art. 133 or 134. Indeed, it recognized that his conduct fell within one of the examples of Art. 134 violations contained in the Manual for Courts-Martial, promulgated by the President by Executive Order.[9] Nonetheless, relying chiefly on the Court found the possibility that Arts. 133 and 134 would be applied to future conduct of others as to which there was insufficient warning, or which was within the area of protected First Amendment expression, was enough to give *42 appellee standing to challenge both articles on their face. While it acknowledged that different standards might in some circumstances be applicable in considering vagueness challenges to provisions which govern the conduct of members of the Armed Forces, the Court saw in the case of Arts. 133 and 134 no "countervailing military considerations which justify the twisting of established standards of due process in order to hold inviolate these articles, so clearly repugnant under current constitutional values." Turning finally to appellee's conviction under Art. 90, the Court held that the joint consideration of Art. 90 charges with the charges under Arts. 133 and 134 gave rise to a "reasonable possibility" that appellee's right to a fair trial was prejudiced, so that a new trial was required. Appellants appealed to this Court pursuant to 28 U.S. C. 1252. We set the case for oral argument, and postponed consideration of the question of our jurisdiction to the hearing on the merits.[10] *43 I This Court has long recognized that the military is, by necessity, a specialized society separate from civilian society. We have also recognized that the military has, again by necessity, developed laws and traditions of its own during its long history. The differences between the military and civilian communities result from the fact that "it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise." United States ex rel. In In re the Court observed: *44 "An army is not a deliberative body. It is the executive arm. Its law is that of obedience. No question can be left open as to the right to command in the officer, or the duty of obedience in the soldier." More recently we noted that "[t]he military constitutes a specialized community governed by a separate discipline from that of the civilian," and that "the rights of men in the armed forces must perforce be conditioned to meet certain overriding demands of discipline and duty" We have also recognized that a military officer holds a particular position of responsibility and command in the Armed Forces: "The President's commission recites that `reposing special trust and confidence in the patriotism, valor, fidelity and abilities' of the appointee he is named to the specified rank during the pleasure of the President." Just as military society has been a society apart from civilian society, so "[m]ilitary law is a jurisprudence which exists separate and apart from the law which governs in our federal judicial establishment." at And to maintain the discipline essential to perform its mission effectively, the military has developed what "may not unfitly be called the customary military law" or "general usage of the military service." As the opinion in demonstrates, the Court has approved the enforcement of those military customs and usages by courts-martial from the early days of this Nation: ". Courts Martial, when duly organized, are bound to execute their duties, and regulate their modes of proceeding, in the absence of positive enactments. *45 Upon any other principle, Courts Martial would be left without any adequate means to exercise the authority confided to them: for there could scarcely be framed a positive code to provide for the infinite variety of incidents applicable to them." at -36. An examination of the British antecedents of our military law shows that the military law of Britain had long contained the forebears of Arts. 133 and 134 in remarkably similar language. The Articles of the Earl of Essex (1642) provided that "[a]ll other faults, disorders and offenses, not mentioned in these Articles, shall be punished according to the general customs and laws of war." One of the British Articles of War of 65 made punishable "all Disorders or Neglects to the Prejudice of good Order and Military Discipline" that were not mentioned in the other articles.[11] Another of those articles provided: "Whatsoever Commissioned Officer shall be convicted before a General Court-martial, of behaving in a scandalous infamous Manner, such as is unbecoming the Character of an Officer and a Gentleman, shall be discharged from Our Service."[12] In 5 the Continental Congress adopted this last article, along with 68 others for the governance of its army.[13] The following year it was resolved by the Congress that "the committee on spies be directed to revise the rules and articles of war; this being a committee of five, consisting of John Adams, Thomas Jefferson, John *46 Rutledge, James and R. R. Livingston"[14] The article was included in the new set of articles prepared by the Committee, which Congress adopted on September 20, 6.[15] After being once more re-enacted without change in text in 86, it was revised and expanded in 1806, omitting the terms "scandalous" and "infamous," so as to read: "Any commissioned officer convicted before a general court-martial of conduct unbecoming an officer and a gentleman, shall be dismissed [from] the service."[16] From 1806, it remained basically unchanged through numerous congressional re-enactments until it was enacted as Art. 133 of the Uniform Code of Military Justice in 1951. The British article punishing "all Disorders and Neglects." was also adopted by the Continental Congress in 5 and re-enacted in 6.[] Except for a revision in 1916, which added the clause punishing "all conduct of a nature to bring discredit upon the military service,"[18] substantially the same language was preserved throughout the various re-enactments of this article too, until in 1951 it was enacted as Art. 134 of the Uniform Code of Military Justice. Decisions of this Court during the last century have recognized that the longstanding customs and usages *4 of the services impart accepted meaning to the seemingly imprecise standards of Arts. 133 and 134. In this Court upheld the Navy's general article, which provided that "[a]ll crimes committed by persons belonging to the navy, which are not specified in the foregoing articles, shall be punished according to the laws and customs in such cases at sea." The Court reasoned: "[W]hen offences and crimes are not given in terms or by definition, the want of it may be supplied by a comprehensive enactment, such as the 32d article of the rules for the government of the navy, which means that courts martial have jurisdiction of such crimes as are not specified, but which have been recognized to be crimes and offences by the usages in the navy of all nations, and that they shall be punished according to the laws and customs of the sea. Notwithstanding the apparent indeterminateness of such a provision, it is not liable to abuse; for what those crimes are, and how they are to be punished, is well known by practical men in the navy and army, and by those who have studied the law of courts martial, and the offences of which the different courts martial have cognizance." In this Court refused to issue a writ of prohibition against Smith's court-martial trial on charges of "[s]candalous conduct tending to the destruction of good morals" and "[c]ulpable inefficiency in the performance of duty." The Court again recognized the role of "the usages and customs of war" and "old practice in the army" in the interpretation of military law by military tribunals. at 8-9. In United the Court considered a court-martial conviction under what is *48 now Art. 133, rejecting Captain Fletcher's claim that the court-martial could not properly have held that his refusal to pay a just debt was "conduct unbecoming an officer and a gentleman." The Court of Claims decision which the Court affirmed in Fletcher stressed the military's "higher code termed honor, which holds its society to stricter accountability"[19] and with which those trained only in civilian law are unfamiliar. In the Court affirmed another Court of Claims decision, this time refusing to disturb a court-martial conviction for conduct "to the prejudice of good order and military discipline" in violation of the Articles of War. The Court recognized the role of "unwritten law or usage" in giving meaning to the language of what is now Art. 134. In rejecting Swaim's argument that the evidence failed to establish an offense under the article, the Court said: "[T]his is the very matter that falls within the province of courts-martial, and in respect to which their conclusions cannot be controlled or reviewed by the civil courts. As was said in 116 U.S. 8, `of questions not depending upon the construction of the statutes, but upon unwritten military law or usage, within the jurisdiction of courts-martial, military or naval officers, from their training and experience in the service, are more competent judges than the courts of common law.' " The Court of Claims had observed that cases involving "conduct to the prejudice of good order and military discipline," as opposed to conduct unbecoming an officer, "are still further beyond the bounds of ordinary judicial judgment, for they are not measurable by our innate *49 sense of right and wrong, of honor and dishonor, but must be gauged by an actual knowledge and experience of military life, its usages and duties."[20] II The differences noted by this settled line of authority, first between the military community and the civilian community, and second between military law and civilian law, continue in the present day under the Uniform Code of Military Justice. That Code cannot be equated to a civilian criminal code. It, and the various versions of the Articles of War which have preceded it, regulate aspects of the conduct of members of the military which in the civilian sphere are left unregulated. While a civilian criminal code carves out a relatively small segment of potential conduct and declares it criminal, the Uniform Code of Military Justice essays more varied regulation of a much larger segment of the activities of the more tightly knit military community. In civilian life there is no legal sanctioncivil or criminalfor failure to behave as an officer and a gentleman; in the military world, Art. 133 imposes such a sanction on a commissioned officer. The Code likewise imposes other sanctions for conduct that in civilian life is not subject to criminal penalties: disrespect toward superior commissioned officers, Art. 89, 10 U.S. C. 889; cruelty toward, or oppression or maltreatment of subordinates, Art. 93, 10 U.S. C. 893; negligent damaging, destruction, or wrongful disposition of military property of the United States, Art. 108, 10 U.S. C. 908; improper hazarding of a vessel, Art. 110, 10 U.S. C. 910; drunkenness on duty, Art. 112, 10 U.S. C. 912; and malingering, Art. 115, 10 U.S. C. 915. But the other side of the coin is that the penalties provided in the Code vary from death and substantial *50 penal confinement at one extreme to forms of administrative discipline which are below the threshold of what would normally be considered a criminal sanction at the other. Though all of the offenses described in the Code are punishable "as a court-martial may direct," and the accused may demand a trial by court-martial,[21] Art. 15 of the Code also provides for the imposition of nonjudicial "disciplinary punishments" for minor offenses without the intervention of a court-martial. 10 U.S. C. 815. The punishments imposable under that article are of a limited nature. With respect to officers, punishment may encompass suspension of duty, arrest in quarters for not more than 30 days, restriction for not more than 60 days, and forfeiture of pay for a limited period of time. In the case of enlisted men, such punishment may additionally include, among other things, reduction to the next inferior pay grade, extra fatigue duty, and correctional custody for not more than seven consecutive days. Thus, while legal proceedings actually brought before a court-martial are prosecuted in the name of the Government, and the accused has the right to demand that he be proceeded against in this manner before any sanctions may be imposed upon him, a range of minor sanctions for lesser infractions are often imposed administratively. Forfeiture of pay, reduction in rank, and even dismissal from the service bring to mind the law of labor-management relations as much as the civilian criminal law. In short, the Uniform Code of Military Justice regulates a far broader range of the conduct of military personnel than a typical state criminal code regulates of the conduct of civilians; but at the same time the enforcement of that Code in the area of minor offenses *51 is often by sanctions which are more akin to administrative or civil sanctions than to civilian criminal ones. The availability of these lesser sanctions is not surprising in view of the different relationship of the Government to members of the military. It is not only that of lawgiver to citizen, but also that of employer to employee. Indeed, unlike the civilian situation, the Government is often employer, landlord, provisioner, and lawgiver rolled into one. That relationship also reflects the different purposes of the two communities. As we observed in In re 13 U. S., at the military "is the executive arm" whose "law is that of obedience." While members of the military community enjoy many of the same rights and bear many of the same burdens as do members of the civilian community, within the military community there is simply not the same autonomy as there is in the larger civilian community. The military establishment is subject to the control of the civilian Commander in Chief and the civilian departmental heads under him, and its function is to carry out the policies made by those civilian superiors. Perhaps because of the broader sweep of the Uniform Code, the military makes an effort to advise its personnel of the contents of the Uniform Code, rather than depending on the ancient doctrine that everyone is presumed to know the law. Article 13 of the Uniform Code, 10 U.S. C. 93, requires that the provisions of the Code be "carefully explained to each enlisted member at the time of his entrance on active duty, or within six days thereafter" and that they be "explained again after he has completed six months of active duty" Thus the numerically largest component of the services, the enlisted personnel, who might be expected to be a good deal less familiar with the Uniform Code than commissioned officers, are required by its terms *52 to receive instructions in its provisions. Article 13 further provides that a complete text of the Code and of the regulations prescribed by the President "shall be made available to any person on active duty, upon his request, for his personal examination." With these very significant differences between military law and civilian law and between the military community and the civilian community in mind, we turn to appellee's challenges to the constitutionality of Arts. 133 and 134. III Appellee urges that both Art. 133 and Art. 134 (the general article) are "void for vagueness" under the Due Process Clause of the Fifth Amendment and overbroad in violation of the First Amendment. We have recently said of the vagueness doctrine: "The doctrine incorporates notions of fair notice or warning. Moreover, it requires legislatures to set reasonably clear guidelines for law enforcement officials and triers of fact in order to prevent `arbitrary and discriminatory enforcement.' Where a statute's literal scope, unaided by a narrowing state court interpretation, is capable of reaching expression sheltered by the First Amendment, the doctrine demands a greater degree of specificity than in other contexts." Each of these articles has been construed by the United States Court of Military Appeals or by other military authorities in such a manner as to at least partially narrow its otherwise broad scope. The United States Court of Military Appeals has stated that Art. 134 must be judged "not in vacuo, but in the context in which the years have placed it," United States v. Frantz, 2 U.S. C. M. A. 161, 163, *53 C. M. R. 3, 39 Article 134 does not make "every irregular, mischievous, or improper act a court-martial offense," United States v. Sadinsky, 14 U.S. C. M. A. 563, 565, 34 Cow. M. R. 343, 345 (1964), but its reach is limited to conduct that is " `directly and palpably as distinguished from indirectly and remotelyprejudicial to good order and discipline.' " ; United States v. Holiday, 4 U.S. C. M. A. 454, 456, 16 Cow. M. R. 28, 30 It applies only to calls for active opposition to the military policy of the United States, United States v. Priest, 21 U.S. C. M. A. 564, 45 Cow. M. R. 338 and does not reach all "[d]isagreement with, or objection to, a policy of the Government." United States v. Harvey, 19 U.S. C. M. A. 539, 544, 42 Cow. M. R. 141, 146 The Manual for Courts-Martial restates these limitations on the scope of Art. 134.[22] It goes on to say that "[c]ertain disloyal statements by military personnel" may be punishable under Art. 134. "Examples are utterances designed to promote disloyalty or disaffection among troops, as praising the enemy, attacking the war aims of the United States, or denouncing our form of government."[23] Extensive additional interpretative materials are contained in the portions of the Manual devoted to Art. 134, which describe more than sixty illustrative offenses. The Court of Military Appeals has likewise limited the scope of Art. 133. Quoting from W. Winthrop, Military Law and Precedents 11-12 (2d ed. 1920), that court has stated: " ` ". To constitute therefore the conduct here denounced, the act which forms the basis of the charge must have a double significance and effect. *54 Though it need not amount to a crime, it must offend so seriously against law, justice, morality or decorum as to expose to disgrace, socially or as a man, the offender, and at the same time must be of such a nature or committed under such circumstances as to bring dishonor or disrepute upon the military profession which he represents." ' " United States v. Howe, U.S. C. M. A. 165, -8, 3 Cow. M. R. 429, 441-442 (196). The effect of these constructions of Arts. 133 and 134 by the Court of Military Appeals and by other military authorities has been twofold: It has narrowed the very broad reach of the literal language of the articles, and at the same time has supplied considerable specificity by way of examples of the conduct which they cover. It would be idle to pretend that there are not areas within the general confines of the articles' language which have been left vague despite these narrowing constructions. But even though sizable areas of uncertainty as to the coverage of the articles may remain after their official interpretation by authoritative military sources, further content may be supplied even in these areas by less formalized custom and usage. And there also cannot be the slightest doubt under the military precedents that there is a substantial range of conduct to which both articles clearly apply without vagueness or imprecision. It is within that range that appellee's conduct squarely falls, as the Court of Appeals recognized: "Neither are we unmindful that the Manual for Courts-Martial offers as an example of an offense under Article 134, `praising the enemy, attacking the war aims of the United States, or denouncing our form of government.' With the possible exception of the statement that `Special Forces personnel are liars *55 and thieves and killers of peasants and murderers of women and children,' it would appear that each statement for which [Levy] was court-martialed could fall within the example given in the Manual." 48 F.2d, at The Court of Appeals went on to hold, however, that even though Levy's own conduct was clearly prohibited, the void-for-vagueness doctrine conferred standing upon him to challenge the imprecision of the language of the articles as they might be applied to hypothetical situations outside the considerable area within which their applicability was similarly clear. We disagree with the Court of Appeals both in its approach to this question and in its resolution of it. This Court has on more than one occasion invalidated statutes under the Due Process Clause of the Fifth or Fourteenth Amendment because they contained no standard whatever by which criminality could be ascertained, and the doctrine of these cases has subsequently acquired the shorthand description of "void for vagueness." ; (18). In these cases, the criminal provision is vague "not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all." But the Court of Appeals found in this case, and we agree, that Arts. 133 and 134 are subject to no such sweeping condemnation. Levy had fair notice from the language of each article that the particular conduct which he engaged in was punishable. This is a case, then, of the type adverted to in in which the statutes "by their terms or as authoritatively *56 construed apply without question to certain activities, but whose application to other behavior is uncertain." The result of the Court of Appeals' conclusion that Levy had standing to challenge the vagueness of these articles as they might be hypothetically applied to the conduct of others, even though he was squarely within their prohibitions, may stem from a blending of the doctrine of vagueness with the doctrine of overbreadth, but we do not believe it is supported by prior decisions of this Court. We have noted in that more precision in drafting may be required because of the vagueness doctrine in the case of regulation of expression. For the reasons which differentiate military society from civilian society, we think Congress is permitted to legislate both with greater breadth and with greater flexibility when prescribing the rules by which the former shall be governed than it is when prescribing rules for the latter. But each of these differentiations relates to how strict a test of vagueness shall be applied in judging a particular criminal statute. None of them suggests that one who has received fair warning of the criminality of his own conduct from the statute in question is nonetheless entitled to attack it because the language would not give similar fair warning with respect to other conduct which might be within its broad and literal ambit. One to whose conduct a statute clearly applies may not successfully challenge it for vagueness. Because of the factors differentiating military society from civilian society, we hold that the proper standard of review for a vagueness challenge to the articles of the Code is the standard which applies to criminal statutes regulating economic affairs. Clearly, that standard is *5 met here, for as the Court stated in United : "The strong presumptive validity that attaches to an Act of Congress has led this Court to hold many times that statutes are not automatically invalidated as vague simply because difficulty is found in determining whether certain marginal offenses fall within their language. E. g., and United (1). Indeed, we have consistently sought an interpretation which supports the constitutionality of legislation. E. g., United 4 ; ; see (15). "Void for vagueness simply means that criminal responsibility should not attach where one could not reasonably understand that his contemplated conduct is proscribed. United 34 U.S. 612, 6 In determining the sufficiency of the notice a statute must of necessity be examined in the light of the conduct with which a defendant is charged. (15)." Since appellee could have had no reasonable doubt that his public statements urging Negro enlisted men not to go to Vietnam if ordered to do so were both "unbecoming an officer and a gentleman," and "to the prejudice of good order and discipline in the armed forces," in violation of the provisions of Arts. 133 and 134, respectively, his challenge to them as unconstitutionally vague under the Due Process Clause of the Fifth Amendment must fail. We likewise reject appellee's contention that Arts. 133 and 134 are facially invalid because of their "overbreadth." *58 In -521, the Court said: "It matters not that the words appellee used might have been constitutionally prohibited under a narrowly and precisely drawn statute. At least when statutes regulate or proscribe speech and when `no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution,' 380 U.S. 49, the transcendent value to all society of constitutionally protected expression is deemed to justify allowing `attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity'." While the members of the military are not excluded from the protection granted by the First Amendment, the different character of the military community and of the military mission requires a different application of those protections. The fundamental necessity for obedience, and the consequent necessity for imposition of discipline, may render permissible within the military that which would be constitutionally impermissible outside it. Doctrines of First Amendment overbreadth asserted in support of challenges to imprecise language like that contained in Arts. 133 and 134 are not exempt from the operation of these principles. The United States Court of Military Appeals has sensibly expounded the reason for this different application of First Amendment doctrines in its opinion in United States v. Priest, 21 U.S. C. M. A., at 50, 45 Cow. M. R., at 344: "In the armed forces some restrictions exist for reasons that have no counterpart in the civilian *59 community. Disrespectful and contemptuous speech, even advocacy of violent change, is tolerable in the civilian community, for it does not directly affect the capacity of the Government to discharge its responsibilities unless it both is directed to inciting imminent lawless action and is likely to produce such action. ]. In military life, however, other considerations must be weighed. The armed forces depend on a command structure that at times must commit men to combat, not only hazarding their lives but ultimately involving the security of the Nation itself. Speech that is protected in the civil population may nonetheless undermine the effectiveness of response to command. If it does, it is constitutionally unprotected. United States v. Gray, [20 U.S. C. M. A. 63, 42 Cow. M. R. 255 (190)]." In we said that "[e]mbedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court." We further commented in that case that "[i]n the past, the Court has recognized some limited exceptions to these principles, but only because of the most `weighty countervailing policies.' " One of those exceptions "has been carved out in the area of the First Amendment." In the First Amendment context attacks have been permitted "on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity," 380 U.S. 49, *60 This Court has, however, repeatedly expressed its reluctance to strike down a statute on its face where there were a substantial number of situations to which it might be validly applied. Thus, even if there are marginal applications in which a statute would infringe on First Amendment values, facial invalidation is inappropriate if the "remainder of the statute covers a whole range of easily identifiable and constitutionally proscribable conduct" And the Court recognized in that "where conduct and not merely speech is involved" the overbreadth must "not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Here, as the Manual makes clear, both Art. 133 and Art. 134 do prohibit a "whole range of easily identifiable and constitutionally proscribable conduct." Both and Letter Carriers involved basically noncriminal sanctions imposed on federal and state employees who were otherwise civilians. The Uniform Code of Military Justice applies a series of sanctions, varying from severe criminal penalties to administratively imposed minor sanctions, upon members of the military. However, for the reasons dictating a different application of First Amendment principles in the military context described above, we think that the " `weighty countervailing policies,' " which permit the extension of standing in First Amendment cases involving civilian society, must be accorded a good deal less weight in the military context. There is a wide range of the conduct of military personnel to which Arts. 133 and 134 may be applied without infringement of the First Amendment. While there may lurk at the fringes of the articles, even in the light of their narrowing construction by the United *61 States Court of Military Appeals, some possibility that conduct which would be ultimately held to be protected by the First Amendment could be included within their prohibition, we deem this insufficient to invalidate either of them at the behest of appellee. His conduct, that of a commissioned officer publicly urging enlisted personnel to refuse to obey orders which might send them into combat, was unprotected under the most expansive notions of the First Amendment. Articles 133 and 134 may constitutionally prohibit that conduct, and a sufficiently large number of similar or related types of conduct so as to preclude their invalidation for overbreadth. IV Appellee urges that should we disagree with the Court of Appeals as to the constitutionality of Arts. 133 and 134, we should nonetheless affirm its judgment by invalidating his conviction under Art. 90. He contends that to carry out the hospital commandant's order to train aide men in dermatology would have constituted participation in a war crime, and that the commandant gave the order in question, knowing that it would be disobeyed, for the sole purpose of increasing the punishment which could be imposed upon appellee. The Court of Appeals observed that each of these defenses was recognized under the Uniform Code of Military Justice, but had been resolved against appellee on a factual basis by the court-martial which convicted him. The court went on to say that: "In isolation, these factual determinations adverse to appellant under an admittedly valid article are not of constitutional significance and resultantly, are beyond our scope of review." 48 F.2d, at 9. See We agree with the Court of Appeals. * Appellee in his brief here mounts a number of alternative attacks on the sentence imposed by the court-martial, attacks which were not treated by the Court of Appeals in its opinion in this case. To the extent that these points were properly presented to the District Court and preserved on appeal to the Court of Appeals, and to the extent that they are open on federal habeas corpus review of court-martial convictions under we believe they should be addressed by the Court of Appeals in the first instance. Reversed. MR. JUSTICE MARSHALL took no part in the consideration or decision of this case. MR. |
Justice Stewart | majority | false | Kusper v. Pontikes | 1973-11-19T00:00:00 | null | https://www.courtlistener.com/opinion/108881/kusper-v-pontikes/ | https://www.courtlistener.com/api/rest/v3/clusters/108881/ | 1,973 | 1973-012 | 2 | 7 | 2 | Under § 7-43 (d) of the Illinois Election Code, a person is prohibited from voting in the primary election of a political party if he has voted in the primary of any other party within the preceding 23 months.[1] Appellee, Harriet G. Pontikes, is a qualified Chicago voter who voted in a Republican primary in February 1971;[2] she wanted to vote in a March 1972 Democratic primary, but was barred from doing so by this 23-month *53 rule.[3] She filed a complaint for declaratory and injunctive relief in the United States District Court for the Northern District of Illinois, alleging that § 7-43 (d) unconstitutionally abridged her freedom to associate with the political party of her choice by depriving her of the opportunity to vote in the Democratic primary. A statutory three-judge court was convened,[4] and held, one judge dissenting, that the 23-month rule is unconstitutional. 345 F. Supp. 1104.[5] We noted probable jurisdiction of this appeal from that judgment. 411 U.S. 915.[6]
I
At the outset, we are met by the appellants'[7] argument that the District Court should have abstained from adjudicating the constitutionality of the 23-month rule. They base this argument upon that portion of § 7-43 (d) which provides that:
"[P]articipation by a primary elector in a primary of a political party which, under the provisions of Section 7-2 of this Article, is a political party within *54 a city, village or incorporated town or town only and entitled hereunder to make nominations of candidates for city, village or incorporated town or town offices only, and for no other office or offices, shall not disqualify such primary elector from participating in other primaries of his party . . . ." Ill. Rev. Stat., c. 46, § 7-43 (d).
The appellants note that the February 1971 Republican primary election in which Mrs. Pontikes voted involved only nominations for the offices of mayor, city clerk, and city treasurer of the city of Chicago. They claim that the state courts might interpret this 1971 primary to have been one of a "political party within a city . . . only," and thus outside the purview of the 23-month rule.
As we stated in Lake Carriers' Assn. v. MacMullan, 406 U.S. 498, 509:
"Abstention is a `judge-made doctrine . . . , first fashioned in 1941 in Railroad Commission v. Pullman Co., 312 U.S. 496, [that] sanctions . . . escape [from immediate decision] only in narrowly limited "special circumstances," Propper v. Clark, 337 U.S. 472, 492,' Zwickler v. Koota, 389 U.S. 241, 248 (1967), justifying `the delay and expense to which application of the abstention doctrine inevitably gives rise.' England v. Medical Examiners, 375 U.S. 411, 418 (1964)."[8]
The paradigm of the "special circumstances" that make abstention appropriate is a case where the challenged state statute is susceptible of a construction by the state judiciary that would avoid or modify the necessity of reaching a federal constitutional question. Zwickler v. Koota, 389 U.S. 241, 249; Harrison v. NAACP, 360 U.S. 167, 176-177. Abstention in such *55 circumstances not only serves to minimize federal-state friction, but also avoids premature and perhaps unnecessary constitutional adjudication. Harman v. Forssenius, 380 U.S. 528, 534. But the doctrine of abstention "contemplates that deference to state court adjudication only be made where the issue of state law is uncertain." Ibid. Where, on the other hand, it cannot be fairly concluded that the underlying state statute is susceptible of an interpretation that might avoid the necessity for constitutional adjudication, abstention would amount to shirking the solemn responsibility of the federal courts to "guard, enforce, and protect every right granted or secured by the Constitution of the United States," Robb v. Connolly, 111 U.S. 624, 637.
We think that the Illinois statute involved in this case is not fairly susceptible of a reading that would avoid the necessity of constitutional adjudication. The appellants' argumentthat the February 1971 Chicago Republican primary might be considered that of a "political party within a city . . . only"is foreclosed by the decision of the Illinois Supreme Court in Faherty v. Board of Election Comm'rs, 5 Ill. 2d 519, 126 N.E.2d 235. That decision made it clear that the kind of "local" primaries that are outside the scope of § 7-43 (d) are simply those of " `purely city . . . political part[ies]' " those parties entitled, under § 7-2 of the Illinois Election Code, to make nominations for city offices only. Id., at 524, 126 N.E.2d, at 238.[9]
*56 Since both the Democratic and Republican parties are, of course, entitled in Illinois to make nominations not only for city offices, but for congressional, state, and county offices as well, the Faherty court held that they were not within the statutory definition of "city" parties. It follows then, that despite the fact that the February 1971 Republican primary in which the appellee voted involved only nominations for offices within the city of Chicago, Mrs. Pontikes was still clearly barred by the 23-month rule from voting in the March 1972 Democratic primary.[10] The District Court was thus wholly justified in declining to abstain from deciding the constitutional validity of the 23-month rule, and it is to that issue that we now turn.
II
There can no longer be any doubt that freedom to associate with others for the common advancement of political beliefs and ideas is a form of "orderly group *57 activity" protected by the First and Fourteenth Amendments. NAACP v. Button, 371 U.S. 415, 430; Bates v. Little Rock, 361 U.S. 516, 522-523; NAACP v. Alabama, 357 U.S. 449, 460-461. The right to associate with the political party of one's choice is an integral part of this basic constitutional freedom. Williams v. Rhodes, 393 U.S. 23, 30. Cf. United States v. Robel, 389 U.S. 258.
To be sure, administration of the electoral process is a matter that the Constitution largely entrusts to the States.[11] But, in exercising their powers of supervision over elections and in setting qualifications for voters, the States may not infringe upon basic constitutional protections. See, e. g., Dunn v. Blumstein, 405 U.S. 330; Kramer v. Union School District, 395 U.S. 621; Carrington v. Rash, 380 U.S. 89. As the Court made clear in Williams v. Rhodes, supra, unduly restrictive state election laws may so impinge upon freedom of association as to run afoul of the First and Fourteenth Amendments. 393 U.S., at 30. And see id., at 35-41 (DOUGLAS, J., concurring); id., at 41-48 (Harlan, J., concurring).
There can be little doubt that § 7-43 (d) substantially restricts an Illinois voter's freedom to change his political party affiliation. One who wishes to change his party registration must wait almost two years before his choice will be given effect. Moreover, he is forced to forgo participation in any primary elections occurring within the statutory 23-month hiatus. The effect of the Illinois statute is thus to "lock" the voter into his pre-existing party affiliation for a substantial period of time following participation in any primary election, and each succeeding primary vote extends this period of confinement.
*58 The 23-month rule does not, of course, deprive those in the appellee's position of all opportunities to associate with the political party of their choice. But neither did the state attempts to compel disclosure of NAACP membership lists in Bates v. Little Rock and NAACP v. Alabama work a total restriction upon the freedom of the organization's members to associate with each other. Rather, the Court found in those cases that the statutes under attack constituted a "substantial restraint"[12] and a "significant interference"[13] with the exercise of the constitutionally protected right of free association.
The same is true of § 7-43 (d). While the Illinois statute did not absolutely preclude Mrs. Pontikes from associating with the Democratic party, it did absolutely preclude her from voting in that party's 1972 primary election. Under our political system, a basic function of a political party is to select the candidates for public office to be offered to the voters at general elections. A prime objective of most voters in associating themselves with a particular party must surely be to gain a voice in that selection process. By preventing the appellee from participating at all in Democratic primary elections during the statutory period, the Illinois statute deprived her of any voice in choosing the party's candidates, and thus substantially abridged her ability to associate effectively with the party of her choice.
III
As our past decisions have made clear, a significant encroachment upon associational freedom cannot be justified upon a mere showing of a legitimate state interest. Bates v. Little Rock, supra, at 524; NAACP v. Alabama, supra, at 463. For even when *59 pursuing a legitimate interest, a State may not choose means that unnecessarily restrict constitutionally protected liberty. Dunn v. Blumstein, 405 U. S., at 343. "Precision of regulation must be the touchstone in an area so closely touching our most precious freedoms." NAACP v. Button, 371 U. S., at 438. If the State has open to it a less drastic way of satisfying its legitimate interests, it may not choose a legislative scheme that broadly stifles the exercise of fundamental personal liberties. Shelton v. Tucker, 364 U.S. 479, 488.
The appellants here urge that the 23-month rule serves the purpose of preventing "raiding"the practice whereby voters in sympathy with one party vote in another's primary in order to distort that primary's results. It is said that our decision in Rosario v. Rockefeller, 410 U.S. 752, recognized the state interest in inhibiting "raiding," and upheld the constitutional validity of legislation restricting a voter's freedom to change parties, enacted as a means of serving that interest.
It is true, of course, that the Court found no constitutional infirmity in the New York delayed-enrollment statute[14] under review in Rosario. That law required a voter to enroll in the party of his choice at least 30 days before a general election in order to be eligible to vote in the next party primary, and thus prevented a change in party affiliation during the approximately 11 months between the deadline and the primary election.[15] It is also true that the Court recognized in Rosario that a State may have a legitimate interest in seeking to curtail "raiding," since that practice may *60 affect the integrity of the electoral process. Id., at 761. But it does not follow from Rosario that the Illinois statutory procedures also pass muster under the Fourteenth Amendment, for the Illinois Election Code differs from the New York delayed-enrollment law in a number of important respects.
The New York statute at issue in Rosario did not prevent voters from participating in the party primary of their choice; it merely imposed a time limit on enrollment. Under the New York law, a person who wanted to vote in a different party primary every year was not precluded from doing so; he had only to meet the requirement of declaring his party allegiance 30 days before the preceding general election. The New York law did not have the consequence of "locking" a voter into an unwanted party affiliation from one election to the next; any such confinement was merely the result of the elector's voluntary failure to take timely measures to enroll. Id., at 757-759. The Court therefore concluded that the New York delayed-enrollment law did not prevent voters "from associating with the political party of their choice." Id., at 762. And see id., at 758 and n. 8.
The basic difference in the Illinois law is obvious. Since the appellee here voted in the 1971 Republican primary, the state law absolutely precluded her from participating in the 1972 Democratic primary. Unlike the petitioners in Rosario, whose disenfranchisement was caused by their own failure to take timely measures to enroll, there was no action that Mrs. Pontikes could have taken to make herself eligible to vote in the 1972 Democratic primary.[16] The Illinois law, unlike that of *61 New York, thus "locks" voters into a pre-existing party affiliation from one primary to the next, and the only way to break the "lock" is to forgo voting in any primary for a period of almost two years.
In other words, while the Court held in Rosario that the New York delayed-enrollment scheme did not prevent voters from exercising their constitutional freedom to associate with the political party of their choice, the Illinois 23-month rule clearly does just that. It follows that the legitimate interest of Illinois in preventing "raiding" cannot justify the device it has chosen to effect its goal. For that device conspicuously infringes upon basic constitutional liberty. Far from supporting the validity of the Illinois legislation, the Court's decision in Rosario suggests that the asserted state interest can be attained by "less drastic means," which do not unnecessarily burden the exercise of constitutionally protected activity.
We conclude, therefore, that § 7-43 (d) of the Illinois Election Code unconstitutionally infringes upon the right of free political association protected by the First and Fourteenth Amendments. The judgment of the District Court is accordingly
Affirmed.
THE CHIEF JUSTICE concurs in the result.
MR. | Under 7-43 (d) of the Illinois Election Code, a person is prohibited from voting in the primary election of a political party if he has voted in the primary of any other party within the preceding 23 months.[1] Appellee, Harriet G. Pontikes, is a qualified Chicago voter who voted in a Republican primary in February 1971;[2] she wanted to vote in a March 1972 Democratic primary, but was barred from doing so by this 23-month *53 rule.[3] She filed a complaint for declaratory and injunctive relief in the United States District Court for the Northern District of Illinois, alleging that 7-43 (d) unconstitutionally abridged her freedom to associate with the political party of her choice by depriving her of the opportunity to vote in the Democratic primary. A statutory three-judge court was convened,[4] and held, one judge dissenting, that the 23-month rule is unconstitutional.[5] We noted probable jurisdiction of this appeal from that judgment.[6] I At the outset, we are met by the appellants'[7] argument that the District Court should have abstained from adjudicating the constitutionality of the 23-month rule. They base this argument upon that portion of 7-43 (d) which provides that: "[P]articipation by a primary elector in a primary of a political party which, under the provisions of Section 7-2 of this Article, is a political party within *54 a city, village or incorporated town or town only and entitled hereunder to make nominations of candidates for city, village or incorporated town or town offices only, and for no other office or offices, shall not disqualify such primary elector from participating in other primaries of his party" Ill. Rev. Stat., c. 46, 7-43 (d). The appellants note that the February 1971 Republican primary election in which Mrs. Pontikes voted involved only nominations for the offices of mayor, city clerk, and city treasurer of the city of Chicago. They claim that the state courts might interpret this 1971 primary to have been one of a "political party within a city only," and thus outside the purview of the 23-month rule. As we stated in Lake Carriers' 509: "Abstention is a `judge-made doctrine first fashioned in 1941 in Railroad justifying `the delay and expense to which application of the abstention doctrine inevitably gives rise.'"[8] The paradigm of the "special circumstances" that make abstention appropriate is a case where the challenged state statute is susceptible of a construction by the state judiciary that would avoid or modify the necessity of reaching a federal constitutional question. ; Abstention in such *55 circumstances not only serves to minimize federal-state friction, but also avoids premature and perhaps unnecessary constitutional adjudication. But the doctrine of abstention "contemplates that deference to state court adjudication only be made where the issue of state law is uncertain." Where, on the other hand, it cannot be fairly concluded that the underlying state statute is susceptible of an interpretation that might avoid the necessity for constitutional adjudication, abstention would amount to shirking the solemn responsibility of the federal courts to "guard, enforce, and protect every right granted or secured by the Constitution of the United States," We think that the Illinois statute involved in this case is not fairly susceptible of a reading that would avoid the necessity of constitutional adjudication. The appellants' argumentthat the February 1971 Chicago Republican primary might be considered that of a "political party within a city only"is foreclosed by the decision of the Illinois Supreme Court in That decision made it clear that the kind of "local" primaries that are outside the scope of 7-43 (d) are simply those of " `purely city political part[ies]' " those parties entitled, under 7-2 of the Illinois Election Code, to make nominations for city offices only.[9] *56 Since both the Democratic and Republican parties are, of course, entitled in Illinois to make nominations not only for city offices, but for congressional, state, and county offices as well, the Faherty court held that they were not within the statutory definition of "city" parties. It follows then, that despite the fact that the February 1971 Republican primary in which the appellee voted involved only nominations for offices within the city of Chicago, Mrs. Pontikes was still clearly barred by the 23-month rule from voting in the March 1972 Democratic primary.[10] The District Court was thus wholly justified in declining to abstain from deciding the constitutional validity of the 23-month rule, and it is to that issue that we now turn. II There can no longer be any doubt that freedom to associate with others for the common advancement of political beliefs and ideas is a form of "orderly group *57 activity" protected by the First and Fourteenth ; ; The right to associate with the political party of one's choice is an integral part of this basic constitutional freedom. Cf. United To be sure, administration of the electoral process is a matter that the Constitution largely entrusts to the States.[11] But, in exercising their powers of supervision over elections and in setting qualifications for voters, the States may not infringe upon basic constitutional protections. See, e. g., 405 U.S. 3; ; As the Court made clear in unduly restrictive state election laws may so impinge upon freedom of association as to run afoul of the First and Fourteenth 393 U.S., at And see ; There can be little doubt that 7-43 (d) substantially restricts an Illinois voter's freedom to change his political party affiliation. One who wishes to change his party registration must wait almost two years before his choice will be given effect. Moreover, he is forced to forgo participation in any primary elections occurring within the statutory 23-month hiatus. The effect of the Illinois statute is thus to "lock" the voter into his pre-existing party affiliation for a substantial period of time following participation in any primary election, and each succeeding primary vote extends this period of confinement. *58 The 23-month rule does not, of course, deprive those in the appellee's position of all opportunities to associate with the political party of their choice. But neither did the state attempts to compel disclosure of NAACP membership lists in and work a total restriction upon the freedom of the organization's members to associate with each other. Rather, the Court found in those cases that the statutes under attack constituted a "substantial restraint"[12] and a "significant interference"[13] with the exercise of the constitutionally protected right of free association. The same is true of 7-43 (d). While the Illinois statute did not absolutely preclude Mrs. Pontikes from associating with the Democratic party, it did absolutely preclude her from voting in that party's 1972 primary election. Under our political system, a basic function of a political party is to select the candidates for public office to be offered to the voters at general elections. A prime objective of most voters in associating themselves with a particular party must surely be to gain a voice in that selection process. By preventing the appellee from participating at all in Democratic primary elections during the statutory period, the Illinois statute deprived her of any voice in choosing the party's candidates, and thus substantially abridged her ability to associate effectively with the party of her choice. III As our past decisions have made clear, a significant encroachment upon associational freedom cannot be justified upon a mere showing of a legitimate state interest. ; For even when *59 pursuing a legitimate interest, a State may not choose means that unnecessarily restrict constitutionally protected liberty. "Precision of regulation must be the touchstone in an area so closely touching our most precious freedoms." If the State has open to it a less drastic way of satisfying its legitimate interests, it may not choose a legislative scheme that broadly stifles the exercise of fundamental personal liberties. The appellants here urge that the 23-month rule serves the purpose of preventing "raiding"the practice whereby voters in sympathy with one party vote in another's primary in order to distort that primary's results. It is said that our decision in Rosario v. efeller, recognized the state interest in inhibiting "raiding," and upheld the constitutional validity of legislation restricting a voter's freedom to change parties, enacted as a means of serving that interest. It is true, of course, that the Court found no constitutional infirmity in the New York delayed-enrollment statute[14] under review in Rosario. That law required a voter to enroll in the party of his choice at least days before a general election in order to be eligible to vote in the next party primary, and thus prevented a change in party affiliation during the approximately 11 months between the deadline and the primary election.[15] It is also true that the Court recognized in Rosario that a State may have a legitimate interest in seeking to curtail "raiding," since that practice may *60 affect the integrity of the electoral process. But it does not follow from Rosario that the Illinois statutory procedures also pass muster under the Fourteenth Amendment, for the Illinois Election Code differs from the New York delayed-enrollment law in a number of important respects. The New York statute at issue in Rosario did not prevent voters from participating in the party primary of their choice; it merely imposed a time limit on enrollment. Under the New York law, a person who wanted to vote in a different party primary every year was not precluded from doing so; he had only to meet the requirement of declaring his party allegiance days before the preceding general election. The New York law did not have the consequence of "locking" a voter into an unwanted party affiliation from one election to the next; any such confinement was merely the result of the elector's voluntary failure to take timely measures to enroll. The Court therefore concluded that the New York delayed-enrollment law did not prevent voters "from associating with the political party of their choice." And see at 758 and n. 8. The basic difference in the Illinois law is obvious. Since the appellee here voted in the 1971 Republican primary, the state law absolutely precluded her from participating in the 1972 Democratic primary. Unlike the petitioners in Rosario, whose disenfranchisement was caused by their own failure to take timely measures to enroll, there was no action that Mrs. Pontikes could have taken to make herself eligible to vote in the 1972 Democratic primary.[16] The Illinois law, unlike that of *61 New York, thus "locks" voters into a pre-existing party affiliation from one primary to the next, and the only way to break the "lock" is to forgo voting in any primary for a period of almost two years. In other words, while the Court held in Rosario that the New York delayed-enrollment scheme did not prevent voters from exercising their constitutional freedom to associate with the political party of their choice, the Illinois 23-month rule clearly does just that. It follows that the legitimate interest of Illinois in preventing "raiding" cannot justify the device it has chosen to effect its goal. For that device conspicuously infringes upon basic constitutional liberty. Far from supporting the validity of the Illinois legislation, the Court's decision in Rosario suggests that the asserted state interest can be attained by "less drastic means," which do not unnecessarily burden the exercise of constitutionally protected activity. We conclude, therefore, that 7-43 (d) of the Illinois Election Code unconstitutionally infringes upon the right of free political association protected by the First and Fourteenth The judgment of the District Court is accordingly Affirmed. THE CHIEF JUSTICE concurs in the result. MR. |
Justice Powell | majority | false | Gertz v. Robert Welch, Inc. | 1974-06-25T00:00:00 | null | https://www.courtlistener.com/opinion/109091/gertz-v-robert-welch-inc/ | https://www.courtlistener.com/api/rest/v3/clusters/109091/ | 1,974 | 1973-162 | 1 | 7 | 2 | This Court has struggled for nearly a decade to define the proper accommodation between the law of defamation and the freedoms of speech and press protected by the First Amendment. With this decision we return to that effort. We granted certiorari to reconsider the extent of a publisher's constitutional privilege against liability for defamation of a private citizen. 410 U.S. 925 (1973).
I
In 1968 a Chicago policeman named Nuccio shot and killed a youth named Nelson. The state authorities prosecuted Nuccio for the homicide and ultimately obtained a conviction for murder in the second degree. The Nelson family retained petitioner Elmer Gertz, a reputable attorney, to represent them in civil litigation against Nuccio.
Respondent publishes American Opinion, a monthly outlet for the views of the John Birch Society. Early in the 1960's the magazine began to warn of a nationwide conspiracy to discredit local law enforcement agencies and create in their stead a national police force capable of supporting a Communist dictatorship. As part of the continuing effort to alert the public to this assumed danger, the managing editor of American Opinion commissioned an article on the murder trial of Officer Nuccio. For this purpose he engaged a regular contributor to the magazine. In March 1969 respondent published the resulting article under the title "FRAME-UP: Richard *326 Nuccio And The War On Police." The article purports to demonstrate that the testimony against Nuccio at his criminal trial was false and that his prosecution was part of the Communist campaign against the police.
In his capacity as counsel for the Nelson family in the civil litigation, petitioner attended the coroner's inquest into the boy's death and initiated actions for damages, but he neither discussed Officer Nuccio with the press nor played any part in the criminal proceeding. Notwithstanding petitioner's remote connection with the prosecution of Nuccio, respondent's magazine portrayed him as an architect of the "frame-up." According to the article, the police file on petitioner took "a big, Irish cop to lift." The article stated that petitioner had been an official of the "Marxist League for Industrial Democracy, originally known as the Intercollegiate Socialist Society, which has advocated the violent seizure of our government." It labeled Gertz a "Leninist" and a "Communist-fronter." It also stated that Gertz had been an officer of the National Lawyers Guild, described as a Communist organization that "probably did more than any other outfit to plan the Communist attack on the Chicago police during the 1968 Democratic Convention."
These statements contained serious inaccuracies. The implication that petitioner had a criminal record was false. Petitioner had been a member and officer of the National Lawyers Guild some 15 years earlier, but there was no evidence that he or that organization had taken any part in planning the 1968 demonstrations in Chicago. There was also no basis for the charge that petitioner was a "Leninist" or a "Communist-fronter." And he had never been a member of the "Marxist League for Industrial Democracy" or the "Intercollegiate Socialist Society."
*327 The managing editor of American Opinion made no effort to verify or substantiate the charges against petitioner. Instead, he appended an editorial introduction stating that the author had "conducted extensive research into the Richard Nuccio Case." And he included in the article a photograph of petitioner and wrote the caption that appeared under it: "Elmer Gertz of Red Guild harrasses Nuccio." Respondent placed the issue of American Opinion containing the article on sale at newsstands throughout the country and distributed reprints of the article on the streets of Chicago.
Petitioner filed a diversity action for libel in the United States District Court for the Northern District of Illinois. He claimed that the falsehoods published by respondent injured his reputation as a lawyer and a citizen. Before filing an answer, respondent moved to dismiss the complaint for failure to state a claim upon which relief could be granted, apparently on the ground that petitioner failed to allege special damages. But the court ruled that statements contained in the article constituted libel per se under Illinois law and that consequently petitioner need not plead special damages. 306 F. Supp. 310 (1969).
After answering the complaint, respondent filed a pretrial motion for summary judgment, claiming a constitutional privilege against liability for defamation.[1] It asserted that petitioner was a public official or a public figure and that the article concerned an issue of public interest and concern. For these reasons, respondent argued, it was entitled to invoke the privilege enunciated in New York Times Co. v. Sullivan, 376 U.S. 254 (1964). Under this rule respondent would escape liability unless *328 petitioner could prove publication of defamatory falsehood "with `actual malice'that is, with knowledge that it was false or with reckless disregard of whether it was false or not." Id., at 280. Respondent claimed that petitioner could not make such a showing and submitted a supporting affidavit by the magazine's managing editor. The editor denied any knowledge of the falsity of the statements concerning petitioner and stated that he had relied on the author's reputation and on his prior experience with the accuracy and authenticity of the author's contributions to American Opinion.
The District Court denied respondent's motion for summary judgment in a memorandum opinion of September 16, 1970. The court did not dispute respondent's claim to the protection of the New York Times standard. Rather, it concluded that petitioner might overcome the constitutional privilege by making a factual showing sufficient to prove publication of defamatory falsehood in reckless disregard of the truth. During the course of the trial, however, it became clear that the trial court had not accepted all of respondent's asserted grounds for applying the New York Times rule to this case. It thought that respondent's claim to the protection of the constitutional privilege depended on the contention that petitioner was either a public official under the New York Times decision or a public figure under Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967), apparently discounting the argument that a privilege would arise from the presence of a public issue. After all the evidence had been presented but before submission of the case to the jury, the court ruled in effect that petitioner was neither a public official nor a public figure. It added that, if he were, the resulting application of the New York Times standard would require a directed verdict for respondent. Because some statements in the article constituted libel per se *329 under Illinois law, the court submitted the case to the jury under instructions that withdrew from its consideration all issues save the measure of damages. The jury awarded $50,000 to petitioner.
Following the jury verdict and on further reflection, the District Court concluded that the New York Times standard should govern this case even though petitioner was not a public official or public figure. It accepted respondent's contention that that privilege protected discussion of any public issue without regard to the status of a person defamed therein. Accordingly, the court entered judgment for respondent notwithstanding the jury's verdict.[2] This conclusion anticipated the reasoning *330 of a plurality of this Court in Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971).
Petitioner appealed to contest the applicability of the New York Times standard to this case. Although the Court of Appeals for the Seventh Circuit doubted the correctness of the District Court's determination that petitioner was not a public figure, it did not overturn that finding.[3] It agreed with the District Court that respondent could assert the constitutional privilege because the article concerned a matter of public interest, citing this Court's intervening decision in Rosenbloom v. Metromedia, Inc., supra. The Court of Appeals read Rosenbloom to require application of the New York Times standard to any publication or broadcast about an issue of significant public interest, without regard to the position, fame, or anonymity of the person defamed, and it concluded that respondent's statements *331 concerned such an issue.[4] After reviewing the record, the Court of Appeals endorsed the District Court's conclusion that petitioner had failed to show by clear and *332 convincing evidence that respondent had acted with "actual malice" as defined by New York Times. There was no evidence that the managing editor of American Opinion knew of the falsity of the accusations made in the article. In fact, he knew nothing about petitioner except what he learned from the article. The court correctly noted that mere proof of failure to investigate, without more, cannot establish reckless disregard for the truth. Rather, the publisher must act with a " `high degree of awareness of . . . probable falsity.' " St. Amant v. Thompson, 390 U.S. 727, 731 (1968); accord, Beckley Newspapers Corp. v. Hanks, 389 U.S. 81, 84-85 (1967); Garrison v. Louisiana, 379 U.S. 64, 75-76 (1964). The evidence in this case did not reveal that respondent had cause for such an awareness. The Court of Appeals therefore affirmed, 471 F.2d 801 (1972). For the reasons stated below, we reverse.
II
The principal issue in this case is whether a newspaper or broadcaster that publishes defamatory falsehoods about an individual who is neither a public official nor a public figure may claim a constitutional privilege against liability for the injury inflicted by those statements. The Court considered this question on the rather different set of facts presented in Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971). Rosenbloom, a distributor of nudist magazines, was arrested for selling allegedly obscene material while making *333 a delivery to a retail dealer. The police obtained a warrant and seized his entire inventory of 3,000 books and magazines. He sought and obtained an injunction prohibiting further police interference with his business. He then sued a local radio station for failing to note in two of its newscasts that the 3,000 items seized were only "reportedly" or "allegedly" obscene and for broadcasting references to "the smut literature racket" and to "girliebook peddlers" in its coverage of the court proceeding for injunctive relief. He obtained a judgment against the radio station, but the Court of Appeals for the Third Circuit held the New York Times privilege applicable to the broadcast and reversed. 415 F.2d 892 (1969).
This Court affirmed the decision below, but no majority could agree on a controlling rationale. The eight Justices[5] who participated in Rosenbloom announced their views in five separate opinions, none of which commanded more than three votes. The several statements not only reveal disagreement about the appropriate result in that case, they also reflect divergent traditions of thought about the general problem of reconciling the law of defamation with the First Amendment. One approach has been to extend the New York Times test to an expanding variety of situations. Another has been to vary the level of constitutional privilege for defamatory falsehood with the status of the person defamed. And a third view would grant to the press and broadcast media absolute immunity from liability for defamation. To place our holding in the proper context, we preface our discussion of this case with a review of the several Rosenbloom opinions and their antecedents.
In affirming the trial court's judgment in the instant case, the Court of Appeals relied on MR. JUSTICE BRENNAN'S *334 conclusion for the Rosenbloom plurality that "all discussion and communication involving matters of public or general concern," 403 U.S., at 44, warrant the protection from liability for defamation accorded by the rule originally enunciated in New York Times Co. v. Sullivan, 376 U.S. 254 (1964). There this Court defined a constitutional privilege intended to free criticism of public officials from the restraints imposed by the common law of defamation. The Times ran a political advertisement endorsing civil rights demonstrations by black students in Alabama and impliedly condemning the performance of local law-enforcement officials. A police commissioner established in state court that certain misstatements in the advertisement referred to him and that they constituted libel per se under Alabama law. This showing left the Times with the single defense of truth, for under Alabama law neither good faith nor reasonable care would protect the newspaper from liability. This Court concluded that a "rule compelling the critic of official conduct to guarantee the truth of all his factual assertions" would deter protected speech, id., at 279, and announced the constitutional privilege designed to counter that effect:
"The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with `actual malice'that is, with knowledge that it was false or with reckless disregard of whether it was false or not." Id., at 279-280.[6]
*335 Three years after New York Times, a majority of the Court agreed to extend the constitutional privilege to defamatory criticism of "public figures." This extension *336 was announced in Curtis Publishing Co. v. Butts and its companion, Associated Press v. Walker, 388 U.S. 130, 162 (1967). The first case involved the Saturday Evening Post's charge that Coach Wally Butts of the University of Georgia had conspired with Coach "Bear" Bryant of the University of Alabama to fix a football game between their respective schools. Walker involved an erroneous Associated Press account of former Major General Edwin Walker's participation in a University of Mississippi campus riot. Because Butts was paid by a private alumni association and Walker had resigned from the Army, neither could be classified as a "public official" under New York Times. Although Mr. Justice Harlan announced the result in both cases, a majority of the Court agreed with Mr. Chief Justice Warren's conclusion that the New York Times test should apply to criticism of "public figures" as well as "public officials."[7] The Court extended the constitutional *337 privilege announced in that case to protect defamatory criticism of nonpublic persons who "are nevertheless intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large." Id., at 164 (Warren, C. J., concurring in result).
In his opinion for the plurality in Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971), MR. JUSTICE BRENNAN took the New York Times privilege one step further. He concluded that its protection should extend to defamatory falsehoods relating to private persons if the statements concerned matters of general or public interest. He abjured the suggested distinction between public officials and public figures on the one hand and private individuals on the other. He focused instead on society's interest in learning about certain issues: "If a matter is a subject of public or general interest, it cannot suddenly become less so merely because a private individual is involved, or because in some sense the individual did not `voluntarily' choose to become involved." Id., at 43. Thus, under the plurality opinion, a private citizen involuntarily associated with a matter of general interest has no recourse for injury to his reputation unless he can satisfy the demanding requirements of the New York Times test.
Two Members of the Court concurred in the result in Rosenbloom but departed from the reasoning of the plurality. Mr. Justice Black restated his view, long shared by MR. JUSTICE DOUGLAS, that the First Amendment cloaks the news media with an absolute and indefeasible immunity from liability for defamation. Id., at 57. MR JUSTICE WHITE concurred on a narrower ground. Ibid. He concluded that "the First Amendment gives the press and the broadcast media a privilege to report and comment upon the official actions of public *338 servants in full detail, with no requirement that the reputation or the privacy of an individual involved in or affected by the official action be spared from public view." Id., at 62. He therefore declined to reach the broader questions addressed by the other Justices.
Mr. Justice Harlan dissented. Although he had joined the opinion of the Court in New York Times, in Curtis Publishing Co. he had contested the extension of the privilege to public figures. There he had argued that a public figure who held no governmental office should be allowed to recover damages for defamation "on a showing of highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers." 388 U.S., at 155. In his Curtis Publishing Co. opinion Mr. Justice Harlan had distinguished New York Times primarily on the ground that defamation actions by public officials "lay close to seditious libel . . . ." Id., at 153. Recovery of damages by one who held no public office, however, could not "be viewed as a vindication of governmental policy." Id., at 154. Additionally, he had intimated that, because most public officials enjoyed absolute immunity from liability for their own defamatory utterances under Barr v. Matteo, 360 U.S. 564 (1959), they lacked a strong claim to the protection of the courts.
In Rosenbloom Mr. Justice Harlan modified these views. He acquiesced in the application of the privilege to defamation of public figures but argued that a different rule should obtain where defamatory falsehood harmed a private individual. He noted that a private person has less likelihood "of securing access to channels of communication sufficient to rebut falsehoods concerning him" than do public officials and public figures, 403 U.S., at 70, and has not voluntarily placed himself in the *339 public spotlight. Mr. Justice Harlan concluded that the States could constitutionally allow private individuals to recover damages for defamation on the basis of any standard of care except liability without fault.
MR. JUSTICE MARSHALL dissented in Rosenbloom in an opinion joined by MR. JUSTICE STEWART. Id., at 78. He thought that the plurality's "public or general interest" test for determining the applicability of the New York Times privilege would involve the courts in the dangerous business of deciding "what information is relevant to self-government." Id., at 79. He also contended that the plurality's position inadequately served "society's interest in protecting private individuals from being thrust into the public eye by the distorting light of defamation." Ibid. MR. JUSTICE MARSHALL therefore reached the conclusion, also reached by Mr. Justice Harlan, that the States should be "essentially free to continue the evolution of the common law of defamation and to articulate whatever fault standard best suits the State's need," so long as the States did not impose liability without fault. Id., at 86. The principal point of disagreement among the three dissenters concerned punitive damages. Whereas Mr. Justice Harlan thought that the States could allow punitive damages in amounts bearing "a reasonable and purposeful relationship to the actual harm done . . . ," id., at 75, MR. JUSTICE MARSHALL concluded that the size and unpredictability of jury awards of exemplary damages unnecessarily exacerbated the problems of media self-censorship and that such damages should therefore be forbidden.
III
We begin with the common ground. Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but *340 on the competition of other ideas.[8] But there is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society's interest in "uninhibited, robust, and wide-open" debate on public issues. New York Times Co. v. Sullivan, 376 U. S., at 270. They belong to that category of utterances which "are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).
Although the erroneous statement of fact is not worthy of constitutional protection, it is nevertheless inevitable in free debate. As James Madison pointed out in the Report on the Virginia Resolutions of 1798: "Some degree of abuse is inseparable from the proper use of every thing; and in no instance is this more true than in that of the press." 4 J. Elliot, Debates on the Federal Constitution of 1787, p. 571 (1876). And punishment of error runs the risk of inducing a cautious and restrictive exercise of the constitutionally guaranteed freedoms of speech and press. Our decisions recognize that a rule of strict liability that compels a publisher or broadcaster to guarantee the accuracy of his factual assertions may lead to intolerable self-censorship. Allowing the media to avoid liability only by proving the truth of all injurious statements does not accord adequate protection to First Amendment liberties. As the Court stated in New York Times Co. v. Sullivan, supra, at 279: "Allowance of the defense of truth, *341 with the burden of proving it on the defendant, does not mean that only false speech will be deterred." The First Amendment requires that we protect some falsehood in order to protect speech that matters.
The need to avoid self-censorship by the news media is, however, not the only societal value at issue. If it were, this Court would have embraced long ago the view that publishers and broadcasters enjoy an unconditional and indefeasible immunity from liability for defamation. See New York Times Co. v. Sullivan, supra, at 293 (Black, J., concurring); Garrison v. Louisiana, 379 U. S., at 80 (DOUGLAS, J., concurring); Curtis Publishing Co. v. Butts, 388 U. S., at 170 (opinion of Black, J.). Such a rule would, indeed, obviate the fear that the prospect of civil liability for injurious falsehood might dissuade a timorous press from the effective exercise of First Amendment freedoms. Yet absolute protection for the communications media requires a total sacrifice of the competing value served by the law of defamation.
The legitimate state interest underlying the law of libel is the compensation of individuals for the harm inflicted on them by defamatory falsehood. We would not lightly require the State to abandon this purpose, for, as MR. JUSTICE STEWART has reminded us, the individual's right to the protection of his own good name
"reflects no more than our basic concept of the essential dignity and worth of every human beinga concept at the root of any decent system of ordered liberty. The protection of private personality, like the protection of life itself, is left primarily to the individual States under the Ninth and Tenth Amendments. But this does not mean that the right is entitled to any less recognition by this Court as a basic of our constitutional system." Rosenblatt v. Baer, 383 U.S. 75, 92 (1966) (concurring opinion).
*342 Some tension necessarily exists between the need for a vigorous and uninhibited press and the legitimate interest in redressing wrongful injury. As Mr. Justice Harlan stated, "some antithesis between freedom of speech and press and libel actions persists, for libel remains premised on the content of speech and limits the freedom of the publisher to express certain sentiments, at least without guaranteeing legal proof of their substantial accuracy." Curtis Publishing Co. v. Butts, supra, at 152. In our continuing effort to define the proper accommodation between these competing concerns, we have been especially anxious to assure to the freedoms of speech and press that "breathing space" essential to their fruitful exercise. NAACP v. Button, 371 U.S. 415, 433 (1963). To that end this Court has extended a measure of strategic protection to defamatory falsehood.
The New York Times standard defines the level of constitutional protection appropriate to the context of defamation of a public person. Those who, by reason of the notoriety of their achievements or the vigor and success with which they seek the public's attention, are properly classed as public figures and those who hold governmental office may recover for injury to reputation only on clear and convincing proof that the defamatory falsehood was made with knowledge of its falsity or with reckless disregard for the truth. This standard administers an extremely powerful antidote to the inducement to media self-censorship of the common-law rule of strict liability for libel and slander. And it exacts a correspondingly high price from the victims of defamatory falsehood. Plainly many deserving plaintiffs, including some intentionally subjected to injury, will be unable to surmount the barrier of the New York Times test. Despite this *343 substantial abridgment of the state law right to compensation for wrongful hurt to one's reputation, the Court has concluded that the protection of the New York Times privilege should be available to publishers and broadcasters of defamatory falsehood concerning public officials and public figures. New York Times Co. v. Sullivan, supra; Curtis Publishing Co. v. Butts, supra. We think that these decisions are correct, but we do not find their holdings justified solely by reference to the interest of the press and broadcast media in immunity from liability. Rather, we believe that the New York Times rule states an accommodation between this concern and the limited state interest present in the context of libel actions brought by public persons. For the reasons stated below, we conclude that the state interest in compensating injury to the reputation of private individuals requires that a different rule should obtain with respect to them.
Theoretically, of course, the balance between the needs of the press and the individual's claim to compensation for wrongful injury might be struck on a case-by-case basis. As Mr. Justice Harlan hypothesized, "it might seem, purely as an abstract matter, that the most utilitarian approach would be to scrutinize carefully every jury verdict in every libel case, in order to ascertain whether the final judgment leaves fully protected whatever First Amendment values transcend the legitimate state interest in protecting the particular plaintiff who prevailed." Rosenbloom v. Metromedia, Inc., 403 U. S., at 63 (footnote omitted). But this approach would lead to unpredictable results and uncertain expectations, and it could render our duty to supervise the lower courts unmanageable. Because an ad hoc resolution of the competing interests at stake in each particular case is not feasible, we must lay down broad rules of general *344 application. Such rules necessarily treat alike various cases involving differences as well as similarities. Thus it is often true that not all of the considerations which justify adoption of a given rule will obtain in each particular case decided under its authority.
With that caveat we have no difficulty in distinguishing among defamation plaintiffs. The first remedy of any victim of defamation is self-helpusing available opportunities to contradict the lie or correct the error and thereby to minimize its adverse impact on reputation. Public officials and public figures usually enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy.[9] Private individuals are therefore more vulnerable to injury, and the state interest in protecting them is correspondingly greater.
More important than the likelihood that private individuals will lack effective opportunities for rebuttal, there is a compelling normative consideration underlying the distinction between public and private defamation plaintiffs. An individual who decides to seek governmental office must accept certain necessary consequences of that involvement in public affairs. He runs the risk of closer public scrutiny than might otherwise be the case. And society's interest in the officers of government is not strictly limited to the formal discharge of official duties. As the Court pointed out in Garrison v. Louisiana, 379 U. S., at 77, the public's interest extends to "anything *345 which might touch on an official's fitness for office . . . . Few personal attributes are more germane to fitness for office than dishonesty, malfeasance, or improper motivation, even though these characteristics may also affect the official's private character."
Those classed as public figures stand in a similar position. Hypothetically, it may be possible for someone to become a public figure through no purposeful action of his own, but the instances of truly involuntary public figures must be exceedingly rare. For the most part those who attain this status have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either event, they invite attention and comment.
Even if the foregoing generalities do not obtain in every instance, the communications media are entitled to act on the assumption that public officials and public figures have voluntarily exposed themselves to increased risk of injury from defamatory falsehood concerning them. No such assumption is justified with respect to a private individual. He has not accepted public office or assumed an "influential role in ordering society." Curtis Publishing Co. v. Butts, 388 U. S., at 164 (Warren, C. J., concurring in result). He has relinquished no part of his interest in the protection of his own good name, and consequently he has a more compelling call on the courts for redress of injury inflicted by defamatory falsehood. Thus, private individuals are not only more vulnerable to injury than public officials and public figures; they are also more deserving of recovery.
For these reasons we conclude that the States should retain substantial latitude in their efforts to enforce a *346 legal remedy for defamatory falsehood injurious to the reputation of a private individual. The extension of the New York Times test proposed by the Rosenbloom plurality would abridge this legitimate state interest to a degree that we find unacceptable. And it would occasion the additional difficulty of forcing state and federal judges to decide on an ad hoc basis which publications address issues of "general or public interest" and which do notto determine, in the words of MR. JUSTICE MARSHALL, "what information is relevant to self-government." Rosenbloom v. Metromedia, Inc., 403 U. S., at 79. We doubt the wisdom of committing this task to the conscience of judges. Nor does the Constitution require us to draw so thin a line between the drastic alternatives of the New York Times privilege and the common law of strict liability for defamatory error. The "public or general interest" test for determining the applicability of the New York Times standard to private defamation actions inadequately serves both of the competing values at stake. On the one hand, a private individual whose reputation is injured by defamatory falsehood that does concern an issue of public or general interest has no recourse unless he can meet the rigorous requirements of New York Times. This is true despite the factors that distinguish the state interest in compensating private individuals from the analogous interest involved in the context of public persons. On the other hand, a publisher or broadcaster of a defamatory error which a court deems unrelated to an issue of public or general interest may be held liable in damages even if it took every reasonable precaution to ensure the accuracy of its assertions. And liability may far exceed compensation for any actual injury to the plaintiff, for the jury may be permitted to presume damages without proof of loss and even to award punitive damages.
*347 We hold that, so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.[10] This approach provides a more equitable *348 boundary between the competing concerns involved here. It recognizes the strength of the legitimate state interest in compensating private individuals for wrongful injury to reputation, yet shields the press and broadcast media from the rigors of strict liability for defamation. At least this conclusion obtains where, as here, the substance of the defamatory statement "makes substantial danger to reputation apparent."[11] This phrase places in perspective the conclusion we announce today. Our inquiry would involve considerations somewhat different from those discussed above if a State purported to condition civil liability on a factual misstatement whose content did not warn a reasonably prudent editor or broadcaster of its defamatory potential. Cf. Time, Inc. v. Hill, 385 U.S. 374 (1967). Such a case is not now before us, and we intimate no view as to its proper resolution.
IV
Our accommodation of the competing values at stake in defamation suits by private individuals allows the States to impose liability on the publisher or broadcaster of defamatory falsehood on a less demanding showing than that required by New York Times. This conclusion is not based on a belief that the considerations which prompted the adoption of the New York Times privilege for defamation of public officials and its extension to public figures are wholly inapplicable to the context of private individuals. Rather, we endorse this approach in recognition of the strong and legitimate state interest in compensating private individuals for injury to reputation. *349 But this countervailing state interest extends no further than compensation for actual injury. For the reasons stated below, we hold that the States may not permit recovery of presumed or punitive damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth.
The common law of defamation is an oddity of tort law, for it allows recovery of purportedly compensatory damages without evidence of actual loss. Under the traditional rules pertaining to actions for libel, the existence of injury is presumed from the fact of publication. Juries may award substantial sums as compensation for supposed damage to reputation without any proof that such harm actually occurred. The largely uncontrolled discretion of juries to award damages where there is no loss unnecessarily compounds the potential of any system of liability for defamatory falsehood to inhibit the vigorous exercise of First Amendment freedoms. Additionally, the doctrine of presumed damages invites juries to punish unpopular opinion rather than to compensate individuals for injury sustained by the publication of a false fact. More to the point, the States have no substantial interest in securing for plaintiffs such as this petitioner gratuitous awards of money damages far in excess of any actual injury.
We would not, of course, invalidate state law simply because we doubt its wisdom, but here we are attempting to reconcile state law with a competing interest grounded in the constitutional command of the First Amendment. It is therefore appropriate to require that state remedies for defamatory falsehood reach no farther than is necessary to protect the legitimate interest involved. It is necessary to restrict defamation plaintiffs who do not prove knowledge of falsity or reckless disregard for the truth to compensation for actual injury. We *350 need not define "actual injury," as trial courts have wide experience in framing appropriate jury instructions in tort actions. Suffice it to say that actual injury is not limited to out-of-pocket loss. Indeed, the more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering. Of course, juries must be limited by appropriate instructions, and all awards must be supported by competent evidence concerning the injury, although there need be no evidence which assigns an actual dollar value to the injury.
We also find no justification for allowing awards of punitive damages against publishers and broadcasters held liable under state-defined standards of liability for defamation. In most jurisdictions jury discretion over the amounts awarded is limited only by the gentle rule that they not be excessive. Consequently, juries assess punitive damages in wholly unpredictable amounts bearing no necessary relation to the actual harm caused. And they remain free to use their discretion selectively to punish expressions of unpopular views. Like the doctrine of presumed damages, jury discretion to award punitive damages unnecessarily exacerbates the danger of media self-censorship, but, unlike the former rule, punitive damages are wholly irrelevant to the state interest that justifies a negligence standard for private defamation actions. They are not compensation for injury. Instead, they are private fines levied by civil juries to punish reprehensible conduct and to deter its future occurrence. In short, the private defamation plaintiff who established liability under a less demanding standard than that stated by New York Times may recover only such damages as are sufficient to compensate him for actual injury.
*351 V
Notwithstanding our refusal to extend the New York Times privilege to defamation of private individuals, respondent contends that we should affirm the judgment below on the ground that petitioner is either a public official or a public figure. There is little basis for the former assertion. Several years prior to the present incident, petitioner had served briefly on housing committees appointed by the mayor of Chicago, but at the time of publication he had never held any remunerative governmental position. Respondent admits this but argues that petitioner's appearance at the coroner's inquest rendered him a "de facto public official." Our cases recognize no such concept. Respondent's suggestion would sweep all lawyers under the New York Times rule as officers of the court and distort the plain meaning of the "public official" category beyond all recognition. We decline to follow it.
Respondent's characterization of petitioner as a public figure raises a different question. That designation may rest on either of two alternative bases. In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues. In either case such persons assume special prominence in the resolution of public questions.
Petitioner has long been active in community and professional affairs. He has served as an officer of local civic groups and of various professional organizations, and he has published several books and articles on legal subjects. Although petitioner was consequently well known in some circles, he had achieved no general fame *352 or notoriety in the community. None of the prospective jurors called at the trial had ever heard of petitioner prior to this litigation, and respondent offered no proof that this response was atypical of the local population. We would not lightly assume that a citizen's participation in community and professional affairs rendered him a public figure for all purposes. Absent clear evidence of general fame or notoriety in the community, and pervasive involvement in the affairs of society, an individual should not be deemed a public personality for all aspects of his life. It is preferable to reduce the public-figure question to a more meaningful context by looking to the nature and extent of an individual's participation in the particular controversy giving rise to the defamation.
In this context it is plain that petitioner was not a public figure. He played a minimal role at the coroner's inquest, and his participation related solely to his representation of a private client. He took no part in the criminal prosecution of Officer Nuccio. Moreover, he never discussed either the criminal or civil litigation with the press and was never quoted as having done so. He plainly did not thrust himself into the vortex of this public issue, nor did he engage the public's attention in an attempt to influence its outcome. We are persuaded that the trial court did not err in refusing to characterize petitioner as a public figure for the purpose of this litigation.
We therefore conclude that the New York Times standard is inapplicable to this case and that the trial court erred in entering judgment for respondent. Because the jury was allowed to impose liability without fault and was permitted to presume damages without proof of injury, a new trial is necessary. We reverse and remand for further proceedings in accord with this opinion.
It is so ordered.
*353 MR. | This Court has struggled for nearly a decade to define the proper accommodation between the law of defamation and the freedoms of speech and press protected by the First Amendment. With this decision we return to that effort. We granted certiorari to reconsider the extent of a publisher's constitutional privilege against liability for defamation of a private citizen. I In a Chicago policeman named Nuccio shot and killed a youth named Nelson. The state authorities prosecuted Nuccio for the homicide and ultimately obtained a conviction for murder in the second degree. The Nelson family retained petitioner Elmer Gertz, a reputable attorney, to represent them in civil litigation against Nuccio. Respondent publishes American Opinion, a monthly outlet for the views of the John Birch Society. Early in the 1960's the magazine began to warn of a nationwide conspiracy to discredit local law enforcement agencies and create in their stead a national police force capable of supporting a Communist dictatorship. As part of the continuing effort to alert the public to this assumed danger, the managing editor of American Opinion commissioned an article on the murder trial of Officer Nuccio. For this purpose he engaged a regular contributor to the magazine. In March respondent published the resulting article under the title "FRAME-UP: Richard *326 Nuccio And The War On Police." The article purports to demonstrate that the testimony against Nuccio at his criminal trial was false and that his prosecution was part of the Communist campaign against the police. In his capacity as counsel for the Nelson family in the civil litigation, petitioner attended the coroner's inquest into the boy's death and initiated actions for damages, but he neither discussed Officer Nuccio with the press nor played any part in the criminal proceeding. Notwithstanding petitioner's remote connection with the prosecution of Nuccio, respondent's magazine portrayed him as an architect of the "frame-up." According to the article, the police file on petitioner took "a big, Irish cop to lift." The article stated that petitioner had been an official of the "Marxist League for Industrial Democracy, originally known as the Intercollegiate Socialist Society, which has advocated the violent seizure of our government." It labeled Gertz a "Leninist" and a "Communist-fronter." It also stated that Gertz had been an officer of the National Lawyers Guild, described as a Communist organization that "probably did more than any other outfit to plan the Communist attack on the Chicago police during the Democratic Convention." These statements contained serious inaccuracies. The implication that petitioner had a criminal record was false. Petitioner had been a member and officer of the National Lawyers Guild some 15 years earlier, but there was no evidence that he or that organization had taken any part in planning the demonstrations in Chicago. There was also no basis for the charge that petitioner was a "Leninist" or a "Communist-fronter." And he had never been a member of the "Marxist League for Industrial Democracy" or the "Intercollegiate Socialist Society." *327 The managing editor of American Opinion made no effort to verify or substantiate the charges against petitioner. Instead, he appended an editorial introduction stating that the author had "conducted extensive research into the Richard Nuccio Case." And he included in the article a photograph of petitioner and wrote the caption that appeared under it: "Elmer Gertz of Red Guild harrasses Nuccio." Respondent placed the issue of American Opinion containing the article on sale at newsstands throughout the country and distributed reprints of the article on the streets of Chicago. Petitioner filed a diversity action for libel in the United States District Court for the Northern District of Illinois. He claimed that the falsehoods published by respondent injured his reputation as a lawyer and a citizen. Before filing an answer, respondent moved to dismiss the complaint for failure to state a claim upon which relief could be granted, apparently on the ground that petitioner failed to allege special damages. But the court ruled that statements contained in the article constituted libel per se under Illinois law and that consequently petitioner need not plead special damages. After answering the complaint, respondent filed a pretrial motion for summary judgment, claiming a constitutional privilege against liability for defamation.[1] It asserted that petitioner was a public official or a public figure and that the article concerned an issue of public interest and concern. For these reasons, respondent argued, it was entitled to invoke the privilege enunciated in New York Times Under this rule respondent would escape liability unless *328 petitioner could prove publication of defamatory falsehood "with `actual malice'that is, with knowledge that it was false or with reckless disregard of whether it was false or not." Respondent claimed that petitioner could not make such a showing and submitted a supporting affidavit by the magazine's managing editor. The editor denied any knowledge of the falsity of the statements concerning petitioner and stated that he had relied on the author's reputation and on his prior experience with the accuracy and authenticity of the author's contributions to American Opinion. The District Court denied respondent's motion for summary judgment in a memorandum opinion of September 16, 1970. The court did not dispute respondent's claim to the protection of the New York Times standard. Rather, it concluded that petitioner might overcome the constitutional privilege by making a factual showing sufficient to prove publication of defamatory falsehood in reckless disregard of the truth. During the course of the trial, however, it became clear that the trial court had not accepted all of respondent's asserted grounds for applying the New York Times rule to this case. It thought that respondent's claim to the protection of the constitutional privilege depended on the contention that petitioner was either a public official under the New York Times decision or a public figure under Curtis Publishing apparently discounting the argument that a privilege would arise from the presence of a public issue. After all the evidence had been presented but before submission of the case to the jury, the court ruled in effect that petitioner was neither a public official nor a public figure. It added that, if he were, the resulting application of the New York Times standard would require a directed verdict for respondent. Because some statements in the article constituted libel per se *329 under Illinois law, the court submitted the case to the jury under instructions that withdrew from its consideration all issues save the measure of damages. The jury awarded $50,000 to petitioner. Following the jury verdict and on further reflection, the District Court concluded that the New York Times standard should govern this case even though petitioner was not a public official or public figure. It accepted respondent's contention that that privilege protected discussion of any public issue without regard to the status of a person defamed therein. Accordingly, the court entered judgment for respondent notwithstanding the jury's verdict.[2] This conclusion anticipated the reasoning *330 of a plurality of this Court in Petitioner appealed to contest the applicability of the New York Times standard to this case. Although the Court of Appeals for the Seventh Circuit doubted the correctness of the District Court's determination that petitioner was not a public figure, it did not overturn that finding.[3] It agreed with the District Court that respondent could assert the constitutional privilege because the article concerned a matter of public interest, citing this Court's intervening decision in The Court of Appeals read Rosenbloom to require application of the New York Times standard to any publication or broadcast about an issue of significant public interest, without regard to the position, fame, or anonymity of the person defamed, and it concluded that respondent's statements *331 concerned such an issue.[4] After reviewing the record, the Court of Appeals endorsed the District Court's conclusion that petitioner had failed to show by clear and *332 convincing evidence that respondent had acted with "actual malice" as defined by New York Times. There was no evidence that the managing editor of American Opinion knew of the falsity of the accusations made in the article. In fact, he knew nothing about petitioner except what he learned from the article. The court correctly noted that mere proof of failure to investigate, without more, cannot establish reckless disregard for the truth. Rather, the publisher must act with a " `high degree of awareness of probable falsity.' " St. ; accord, Beckley Newspapers ; The evidence in this case did not reveal that respondent had cause for such an awareness. The Court of Appeals therefore affirmed, For the reasons stated below, we reverse. II The principal issue in this case is whether a newspaper or broadcaster that publishes defamatory falsehoods about an individual who is neither a public official nor a public figure may claim a constitutional privilege against liability for the injury inflicted by those statements. The Court considered this question on the rather different set of facts presented in Rosenbloom, a distributor of nudist magazines, was arrested for selling allegedly obscene material while making *333 a delivery to a retail dealer. The police obtained a warrant and seized his entire inventory of 3,000 books and magazines. He sought and obtained an injunction prohibiting further police interference with his business. He then sued a local radio station for failing to note in two of its newscasts that the 3,000 items seized were only "reportedly" or "allegedly" obscene and for broadcasting references to "the smut literature racket" and to "girliebook peddlers" in its coverage of the court proceeding for injunctive relief. He obtained a judgment against the radio station, but the Court of Appeals for the Third Circuit held the New York Times privilege applicable to the broadcast and reversed. This Court affirmed the decision below, but no majority could agree on a controlling rationale. The eight Justices[5] who participated in Rosenbloom announced their views in five separate opinions, none of which commanded more than three votes. The several statements not only reveal disagreement about the appropriate result in that case, they also reflect divergent traditions of thought about the general problem of reconciling the law of defamation with the First Amendment. One approach has been to extend the New York Times test to an expanding variety of situations. Another has been to vary the level of constitutional privilege for defamatory falsehood with the status of the person defamed. And a third view would grant to the press and broadcast media absolute immunity from liability for defamation. To place our holding in the proper context, we preface our discussion of this case with a review of the several Rosenbloom opinions and their antecedents. In affirming the trial court's judgment in the instant case, the Court of Appeals relied on MR. JUSTICE BRENNAN'S *334 conclusion for the Rosenbloom plurality that "all discussion and communication involving matters of public or general concern," warrant the protection from liability for defamation accorded by the rule originally enunciated in New York Times There this Court defined a constitutional privilege intended to free criticism of public officials from the restraints imposed by the common law of defamation. The Times ran a political advertisement endorsing civil rights demonstrations by black students in Alabama and impliedly condemning the performance of local law-enforcement officials. A police commissioner established in state court that certain misstatements in the advertisement referred to him and that they constituted libel per se under Alabama law. This showing left the Times with the single defense of truth, for under Alabama law neither good faith nor reasonable care would protect the newspaper from liability. This Court concluded that a "rule compelling the critic of official conduct to guarantee the truth of all his factual assertions" would deter protected speech, and announced the constitutional privilege designed to counter that effect: "The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with `actual malice'that is, with knowledge that it was false or with reckless disregard of whether it was false or not." -280.[6] *335 Three years after New York Times, a majority of the Court agreed to extend the constitutional privilege to defamatory criticism of "public figures." This extension *336 was announced in Curtis Publishing and its companion, Associated The first case involved the Saturday Evening Post's charge that Coach Wally of the University of Georgia had conspired with Coach "Bear" Bryant of the University of Alabama to fix a football game between their respective schools. Walker involved an erroneous Associated Press account of former Major General Edwin Walker's participation in a University of Mississippi campus riot. Because was paid by a private alumni association and Walker had resigned from the Army, neither could be classified as a "public official" under New York Times. Although Mr. Justice Harlan announced the result in both cases, a majority of the Court agreed with Mr. Chief Justice Warren's conclusion that the New York Times test should apply to criticism of "public figures" as well as "public officials."[7] The Court extended the constitutional *337 privilege announced in that case to protect defamatory criticism of nonpublic persons who "are nevertheless intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large." In his opinion for the plurality in MR. JUSTICE BRENNAN took the New York Times privilege one step further. He concluded that its protection should extend to defamatory falsehoods relating to private persons if the statements concerned matters of general or public interest. He abjured the suggested distinction between public officials and public figures on the one hand and private individuals on the other. He focused instead on society's interest in learning about certain issues: "If a matter is a subject of public or general interest, it cannot suddenly become less so merely because a private individual is involved, or because in some sense the individual did not `voluntarily' choose to become involved." Thus, under the plurality opinion, a private citizen involuntarily associated with a matter of general interest has no recourse for injury to his reputation unless he can satisfy the demanding requirements of the New York Times test. Two Members of the Court concurred in the result in Rosenbloom but departed from the reasoning of the plurality. Mr. Justice Black restated his view, long shared by MR. JUSTICE DOUGLAS, that the First Amendment cloaks the news media with an absolute and indefeasible immunity from liability for defamation. MR JUSTICE WHITE concurred on a narrower ground. He concluded that "the First Amendment gives the press and the broadcast media a privilege to report and comment upon the official actions of public *338 servants in full detail, with no requirement that the reputation or the privacy of an individual involved in or affected by the official action be spared from public view." He therefore declined to reach the broader questions addressed by the other Justices. Mr. Justice Harlan dissented. Although he had joined the opinion of the Court in New York Times, in Curtis Publishing Co. he had contested the extension of the privilege to public figures. There he had argued that a public figure who held no governmental office should be allowed to recover damages for defamation "on a showing of highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers." In his Curtis Publishing Co. opinion Mr. Justice Harlan had distinguished New York Times primarily on the ground that defamation actions by public officials "lay close to seditious libel" Recovery of damages by one who held no public office, however, could not "be viewed as a vindication of governmental policy." Additionally, he had intimated that, because most public officials enjoyed absolute immunity from liability for their own defamatory utterances under they lacked a strong claim to the protection of the courts. In Rosenbloom Mr. Justice Harlan modified these views. He acquiesced in the application of the privilege to defamation of public figures but argued that a different rule should obtain where defamatory falsehood harmed a private individual. He noted that a private person has less likelihood "of securing access to channels of communication sufficient to rebut falsehoods concerning him" than do public officials and public figures, and has not voluntarily placed himself in the *339 public spotlight. Mr. Justice Harlan concluded that the States could constitutionally allow private individuals to recover damages for defamation on the basis of any standard of care except liability without fault. MR. JUSTICE MARSHALL dissented in Rosenbloom in an opinion joined by MR. JUSTICE STEWART. He thought that the plurality's "public or general interest" test for determining the applicability of the New York Times privilege would involve the courts in the dangerous business of deciding "what information is relevant to self-government." He also contended that the plurality's position inadequately served "society's interest in protecting private individuals from being thrust into the public eye by the distorting light of defamation." MR. JUSTICE MARSHALL therefore reached the conclusion, also reached by Mr. Justice Harlan, that the States should be "essentially free to continue the evolution of the common law of defamation and to articulate whatever fault standard best suits the State's need," so long as the States did not impose liability without fault. The principal point of disagreement among the three dissenters concerned punitive damages. Whereas Mr. Justice Harlan thought that the States could allow punitive damages in amounts bearing "a reasonable and purposeful relationship to the actual harm done" MR. JUSTICE MARSHALL concluded that the size and unpredictability of jury awards of exemplary damages unnecessarily exacerbated the problems of media self-censorship and that such damages should therefore be forbidden. III We begin with the common ground. Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but *340 on the competition of other ideas.[8] But there is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society's interest in "uninhibited, robust, and wide-open" debate on public issues. New York Times They belong to that category of utterances which "are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." Although the erroneous statement of fact is not worthy of constitutional protection, it is nevertheless inevitable in free debate. As James Madison pointed out in the Report on the Virginia Resolutions of 1798: "Some degree of abuse is inseparable from the proper use of every thing; and in no instance is this more true than in that of the press." 4 J. Elliot, Debates on the Federal Constitution of 1787, p. 571 (1876). And punishment of error runs the risk of inducing a cautious and restrictive exercise of the constitutionally guaranteed freedoms of speech and press. Our decisions recognize that a rule of strict liability that compels a publisher or broadcaster to guarantee the accuracy of his factual assertions may lead to intolerable self-censorship. Allowing the media to avoid liability only by proving the truth of all injurious statements does not accord adequate protection to First Amendment liberties. As the Court stated in New York Times : "Allowance of the defense of truth, *341 with the burden of proving it on the defendant, does not mean that only false speech will be deterred." The First Amendment requires that we protect some falsehood in order to protect speech that matters. The need to avoid self-censorship by the news media is, however, not the only societal value at issue. If it were, this Court would have embraced long ago the view that publishers and broadcasters enjoy an unconditional and indefeasible immunity from liability for defamation. See New York Times ; ; Curtis Publishing Such a rule would, indeed, obviate the fear that the prospect of civil liability for injurious falsehood might dissuade a timorous press from the effective exercise of First Amendment freedoms. Yet absolute protection for the communications media requires a total sacrifice of the competing value served by the law of defamation. The legitimate state interest underlying the law of libel is the compensation of individuals for the harm inflicted on them by defamatory falsehood. We would not lightly require the State to abandon this purpose, for, as MR. JUSTICE STEWART has reminded us, the individual's right to the protection of his own good name "reflects no more than our basic concept of the essential dignity and worth of every human beinga concept at the root of any decent system of ordered liberty. The protection of private personality, like the protection of life itself, is left primarily to the individual States under the Ninth and Tenth Amendments. But this does not mean that the right is entitled to any less recognition by this Court as a basic of our constitutional system." *342 Some tension necessarily exists between the need for a vigorous and uninhibited press and the legitimate interest in redressing wrongful injury. As Mr. Justice Harlan stated, "some antithesis between freedom of speech and press and libel actions persists, for libel remains premised on the content of speech and limits the freedom of the publisher to express certain sentiments, at least without guaranteeing legal proof of their substantial accuracy." Curtis Publishing In our continuing effort to define the proper accommodation between these competing concerns, we have been especially anxious to assure to the freedoms of speech and press that "breathing space" essential to their fruitful exercise. To that end this Court has extended a measure of strategic protection to defamatory falsehood. The New York Times standard defines the level of constitutional protection appropriate to the context of defamation of a public person. Those who, by reason of the notoriety of their achievements or the vigor and success with which they seek the public's attention, are properly classed as public figures and those who hold governmental office may recover for injury to reputation only on clear and convincing proof that the defamatory falsehood was made with knowledge of its falsity or with reckless disregard for the truth. This standard administers an extremely powerful antidote to the inducement to media self-censorship of the common-law rule of strict liability for libel and slander. And it exacts a correspondingly high price from the victims of defamatory falsehood. Plainly many deserving plaintiffs, including some intentionally subjected to injury, will be unable to surmount the barrier of the New York Times test. Despite this *343 substantial abridgment of the state law right to compensation for wrongful hurt to one's reputation, the Court has concluded that the protection of the New York Times privilege should be available to publishers and broadcasters of defamatory falsehood concerning public officials and public figures. New York Times Curtis Publishing We think that these decisions are correct, but we do not find their holdings justified solely by reference to the interest of the press and broadcast media in immunity from liability. Rather, we believe that the New York Times rule states an accommodation between this concern and the limited state interest present in the context of libel actions brought by public persons. For the reasons stated below, we conclude that the state interest in compensating injury to the reputation of private individuals requires that a different rule should obtain with respect to them. Theoretically, of course, the balance between the needs of the press and the individual's claim to compensation for wrongful injury might be struck on a case-by-case basis. As Mr. Justice Harlan hypothesized, "it might seem, purely as an abstract matter, that the most utilitarian approach would be to scrutinize carefully every jury verdict in every libel case, in order to ascertain whether the final judgment leaves fully protected whatever First Amendment values transcend the legitimate state interest in protecting the particular plaintiff who prevailed." But this approach would lead to unpredictable results and uncertain expectations, and it could render our duty to supervise the lower courts unmanageable. Because an ad hoc resolution of the competing interests at stake in each particular case is not feasible, we must lay down broad rules of general *344 application. Such rules necessarily treat alike various cases involving differences as well as similarities. Thus it is often true that not all of the considerations which justify adoption of a given rule will obtain in each particular case decided under its authority. With that caveat we have no difficulty in distinguishing among defamation plaintiffs. The first remedy of any victim of defamation is self-helpusing available opportunities to contradict the lie or correct the error and thereby to minimize its adverse impact on reputation. Public officials and public figures usually enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy.[9] Private individuals are therefore more vulnerable to injury, and the state interest in protecting them is correspondingly greater. More important than the likelihood that private individuals will lack effective opportunities for rebuttal, there is a compelling normative consideration underlying the distinction between public and private defamation plaintiffs. An individual who decides to seek governmental office must accept certain necessary consequences of that involvement in public affairs. He runs the risk of closer public scrutiny than might otherwise be the case. And society's interest in the officers of government is not strictly limited to the formal discharge of official duties. As the Court pointed out in the public's interest extends to "anything *345 which might touch on an official's fitness for office Few personal attributes are more germane to fitness for office than dishonesty, malfeasance, or improper motivation, even though these characteristics may also affect the official's private character." Those classed as public figures stand in a similar position. Hypothetically, it may be possible for someone to become a public figure through no purposeful action of his own, but the instances of truly involuntary public figures must be exceedingly rare. For the most part those who attain this status have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either event, they invite attention and comment. Even if the foregoing generalities do not obtain in every instance, the communications media are entitled to act on the assumption that public officials and public figures have voluntarily exposed themselves to increased risk of injury from defamatory falsehood concerning them. No such assumption is justified with respect to a private individual. He has not accepted public office or assumed an "influential role in ordering society." Curtis Publishing 388 U. S., He has relinquished no part of his interest in the protection of his own good name, and consequently he has a more compelling call on the courts for redress of injury inflicted by defamatory falsehood. Thus, private individuals are not only more vulnerable to injury than public officials and public figures; they are also more deserving of recovery. For these reasons we conclude that the States should retain substantial latitude in their efforts to enforce a *346 legal remedy for defamatory falsehood injurious to the reputation of a private individual. The extension of the New York Times test proposed by the Rosenbloom plurality would abridge this legitimate state interest to a degree that we find unacceptable. And it would occasion the additional difficulty of forcing state and federal judges to decide on an ad hoc basis which publications address issues of "general or public interest" and which do notto determine, in the words of MR. JUSTICE MARSHALL, "what information is relevant to self-government." 403 U. S., We doubt the wisdom of committing this task to the conscience of judges. Nor does the Constitution require us to draw so thin a line between the drastic alternatives of the New York Times privilege and the common law of strict liability for defamatory error. The "public or general interest" test for determining the applicability of the New York Times standard to private defamation actions inadequately serves both of the competing values at stake. On the one hand, a private individual whose reputation is injured by defamatory falsehood that does concern an issue of public or general interest has no recourse unless he can meet the rigorous requirements of New York Times. This is true despite the factors that distinguish the state interest in compensating private individuals from the analogous interest involved in the context of public persons. On the other hand, a publisher or broadcaster of a defamatory error which a court deems unrelated to an issue of public or general interest may be held liable in damages even if it took every reasonable precaution to ensure the accuracy of its assertions. And liability may far exceed compensation for any actual injury to the plaintiff, for the jury may be permitted to presume damages without proof of loss and even to award punitive damages. *347 We hold that, so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.[10] This approach provides a more equitable *348 boundary between the competing concerns involved here. It recognizes the strength of the legitimate state interest in compensating private individuals for wrongful injury to reputation, yet shields the press and broadcast media from the rigors of strict liability for defamation. At least this conclusion obtains where, as here, the substance of the defamatory statement "makes substantial danger to reputation apparent."[11] This phrase places in perspective the conclusion we announce today. Our inquiry would involve considerations somewhat different from those discussed above if a State purported to condition civil liability on a factual misstatement whose content did not warn a reasonably prudent editor or broadcaster of its defamatory potential. Cf. Time, v. Hill, Such a case is not now before us, and we intimate no view as to its proper resolution. IV Our accommodation of the competing values at stake in defamation suits by private individuals allows the States to impose liability on the publisher or broadcaster of defamatory falsehood on a less demanding showing than that required by New York Times. This conclusion is not based on a belief that the considerations which prompted the adoption of the New York Times privilege for defamation of public officials and its extension to public figures are wholly inapplicable to the context of private individuals. Rather, we endorse this approach in recognition of the strong and legitimate state interest in compensating private individuals for injury to reputation. *349 But this countervailing state interest extends no further than compensation for actual injury. For the reasons stated below, we hold that the States may not permit recovery of presumed or punitive damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth. The common law of defamation is an oddity of tort law, for it allows recovery of purportedly compensatory damages without evidence of actual loss. Under the traditional rules pertaining to actions for libel, the existence of injury is presumed from the fact of publication. Juries may award substantial sums as compensation for supposed damage to reputation without any proof that such harm actually occurred. The largely uncontrolled discretion of juries to award damages where there is no loss unnecessarily compounds the potential of any system of liability for defamatory falsehood to inhibit the vigorous exercise of First Amendment freedoms. Additionally, the doctrine of presumed damages invites juries to punish unpopular opinion rather than to compensate individuals for injury sustained by the publication of a false fact. More to the point, the States have no substantial interest in securing for plaintiffs such as this petitioner gratuitous awards of money damages far in excess of any actual injury. We would not, of course, invalidate state law simply because we doubt its wisdom, but here we are attempting to reconcile state law with a competing interest grounded in the constitutional command of the First Amendment. It is therefore appropriate to require that state remedies for defamatory falsehood reach no farther than is necessary to protect the legitimate interest involved. It is necessary to restrict defamation plaintiffs who do not prove knowledge of falsity or reckless disregard for the truth to compensation for actual injury. We *350 need not define "actual injury," as trial courts have wide experience in framing appropriate jury instructions in tort actions. Suffice it to say that actual injury is not limited to out-of-pocket loss. Indeed, the more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering. Of course, juries must be limited by appropriate instructions, and all awards must be supported by competent evidence concerning the injury, although there need be no evidence which assigns an actual dollar value to the injury. We also find no justification for allowing awards of punitive damages against publishers and broadcasters held liable under state-defined standards of liability for defamation. In most jurisdictions jury discretion over the amounts awarded is limited only by the gentle rule that they not be excessive. Consequently, juries assess punitive damages in wholly unpredictable amounts bearing no necessary relation to the actual harm caused. And they remain free to use their discretion selectively to punish expressions of unpopular views. Like the doctrine of presumed damages, jury discretion to award punitive damages unnecessarily exacerbates the danger of media self-censorship, but, unlike the former rule, punitive damages are wholly irrelevant to the state interest that justifies a negligence standard for private defamation actions. They are not compensation for injury. Instead, they are private fines levied by civil juries to punish reprehensible conduct and to deter its future occurrence. In short, the private defamation plaintiff who established liability under a less demanding standard than that stated by New York Times may recover only such damages as are sufficient to compensate him for actual injury. *351 V Notwithstanding our refusal to extend the New York Times privilege to defamation of private individuals, respondent contends that we should affirm the judgment below on the ground that petitioner is either a public official or a public figure. There is little basis for the former assertion. Several years prior to the present incident, petitioner had served briefly on housing committees appointed by the mayor of Chicago, but at the time of publication he had never held any remunerative governmental position. Respondent admits this but argues that petitioner's appearance at the coroner's inquest rendered him a "de facto public official." Our cases recognize no such concept. Respondent's suggestion would sweep all lawyers under the New York Times rule as officers of the court and distort the plain meaning of the "public official" category beyond all recognition. We decline to follow it. Respondent's characterization of petitioner as a public figure raises a different question. That designation may rest on either of two alternative bases. In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues. In either case such persons assume special prominence in the resolution of public questions. Petitioner has long been active in community and professional affairs. He has served as an officer of local civic groups and of various professional organizations, and he has published several books and articles on legal subjects. Although petitioner was consequently well known in some circles, he had achieved no general fame *352 or notoriety in the community. None of the prospective jurors called at the trial had ever heard of petitioner prior to this litigation, and respondent offered no proof that this response was atypical of the local population. We would not lightly assume that a citizen's participation in community and professional affairs rendered him a public figure for all purposes. Absent clear evidence of general fame or notoriety in the community, and pervasive involvement in the affairs of society, an individual should not be deemed a public personality for all aspects of his life. It is preferable to reduce the public-figure question to a more meaningful context by looking to the nature and extent of an individual's participation in the particular controversy giving rise to the defamation. In this context it is plain that petitioner was not a public figure. He played a minimal role at the coroner's inquest, and his participation related solely to his representation of a private client. He took no part in the criminal prosecution of Officer Nuccio. Moreover, he never discussed either the criminal or civil litigation with the press and was never quoted as having done so. He plainly did not thrust himself into the vortex of this public issue, nor did he engage the public's attention in an attempt to influence its outcome. We are persuaded that the trial court did not err in refusing to characterize petitioner as a public figure for the purpose of this litigation. We therefore conclude that the New York Times standard is inapplicable to this case and that the trial court erred in entering judgment for respondent. Because the jury was allowed to impose liability without fault and was permitted to presume damages without proof of injury, a new trial is necessary. We reverse and remand for further proceedings in accord with this opinion. It is so ordered. *353 MR. |
Justice Brennan | dissenting | false | Moorman Mfg. Co. v. Bair | 1978-10-02T00:00:00 | null | https://www.courtlistener.com/opinion/109900/moorman-mfg-co-v-bair/ | https://www.courtlistener.com/api/rest/v3/clusters/109900/ | 1,978 | 1977-118 | 2 | 6 | 3 | I agree with the Court that, for purposes of constitutional review, there is no distinction between a corporate income tax and a gross-receipts tax. I do not agree, however, that Iowa's single-factor sales apportionment formula meets the Commerce Clause requirement that a State's taxation of interstate business must be "fairly apportioned to the commerce carried on within the taxing state." Western Live Stock v. Bureau of Revenue, 303 U.S. 250, 256 (1938). As I have previously explained:
"[Where a sale] exhibits significant contacts with more than one State . . . it is the commercial activity within the State, and not the sales volume, which determines the State's power to tax, and by which the tax must be apportioned. While the ratio of in-state to out-of-state sales is often taken into account as one factor among others in apportioning a firm's total net income, see, e. g., the description of the `Massachusetts Formula' in Note. 75 Harv. L. Rev. 953, 1011 (1962), it nevertheless remains true that *282 if commercial activity in more than one State results in a sale in one of them, that State may not claim as all its own the gross receipts to which the activity within its borders has contributed only a part. Such a tax must be apportioned to reflect the business activity within the taxing State." General Motors Corp. v. Washington, 377 U.S. 436, 450-451 (1964) (dissenting opinion).
I would therefore reverse.
MR. | I agree with the Court that, for purposes of constitutional review, there is no distinction between a corporate income tax and a gross-receipts tax. I do not agree, however, that Iowa's single-factor sales apportionment formula meets the Commerce Clause requirement that a State's taxation of interstate business must be "fairly apportioned to the commerce carried on within the taxing state." Western Live As I have previously explained: "[Where a sale] exhibits significant contacts with more than one State it is the commercial activity within the State, and not the sales volume, which determines the State's power to tax, and by which the tax must be apportioned. While the ratio of in-state to out-of-state sales is often taken into account as one factor among others in apportioning a firm's total net income, see, e. g., the description of the `Massachusetts Formula' in Note. it nevertheless remains true that *282 if commercial activity in more than one State results in a sale in one of them, that State may not claim as all its own the gross receipts to which the activity within its borders has contributed only a part. Such a tax must be apportioned to reflect the business activity within the taxing State." General Motors I would therefore reverse. MR. |
Justice Powell | majority | false | Lalli v. Lalli | 1978-12-11T00:00:00 | null | https://www.courtlistener.com/opinion/109958/lalli-v-lalli/ | https://www.courtlistener.com/api/rest/v3/clusters/109958/ | 1,978 | 1978-016 | 1 | 5 | 4 | This case presents a challenge to the constitutionality of § 4-1.2 of New York's Estates, Powers, and Trusts Law,[1] which requires illegitimate children who would inherit from their fathers by intestate succession to provide a particular form of proof of paternity. Legitimate children are not subject to the same requirement.
I
Appellant Robert Lalli claims to be the illegitimate son of Mario Lalli who died intestate on January 7, 1973, in the State of New York. Appellant's mother, who died in 1968, never was married to Mario. After Mario's widow, Rosamond Lalli, was appointed administratrix of her husband's estate, appellant petitioned the Surrogate's Court for Westchester County for a compulsory accounting, claiming that he and his sister Maureen Lalli were entitled to inherit from Mario as his children. Rosamond Lalli opposed the petition. She argued that even if Robert and Maureen were Mario's children, they were not lawful distributees of the estate because they had failed to comply with § 4-1.2,[2] which provides in part:
"An illegitimate child is the legitimate child of his *262 father so that he and his issue inherit from his father if a court of competent jurisdiction has, during the lifetime of the father, made an order of filiation declaring paternity in a proceeding instituted during the pregnancy of the mother or within two years from the birth of the child."
Appellant conceded that he had not obtained an order of filiation during his putative father's lifetime. He contended, however, that § 4-1.2, by imposing this requirement, discriminated against him on the basis of his illegitimate birth in violation of the Equal Protection Clause of the Fourteenth Amendment.[3] Appellant tendered certain evidence of his relationship with Mario Lalli, including a notarized document *263 in which Lalli, in consenting to appellant's marriage, referred to him as "my son," and several affidavits by persons who stated that Lalli had acknowledged openly and often that Robert and Maureen were his children.
The Surrogate's Court noted that § 4-1.2 had previously, and unsuccessfully, been attacked under the Equal Protection Clause. After reviewing recent decisions of this Court concerning discrimination against illegitimate children, particularly Labine v. Vincent, 401 U.S. 532 (1971), and three New York decisions affirming the constitutionality of the statute, In re Belton, 70 Misc. 2d 814, 335 N. Y. S. 2d 177 (Surr. Ct. 1972); In re Hendrix, 68 Misc. 2d 439, 444, 326 N. Y. S. 2d 646, 652 (Surr. Ct. 1971); In re Crawford, 64 Misc. 2d 758, 762-763, 315 N. Y. S. 2d 890, 895 (Surr. Ct. 1970), the court ruled that appellant was properly excluded as a distributee of Lalli's estate and therefore lacked status to petition for a compulsory accounting.
On direct appeal the New York Court of Appeals affirmed. In re Lalli, 38 N.Y. 2d 77, 340 N.E.2d 721 (1975). It understood Labine to require the State to show no more than that "there is a rational basis for the means chosen by the Legislature for the accomplishment of a permissible State objective." 38 N.Y. 2d, at 81, 340 N.E.2d, at 723. After discussing the problems of proof peculiar to establishing paternity, as opposed to maternity, the court concluded that the State was constitutionally entitled to require a judicial decree during the father's lifetime as the exclusive form of proof of paternity.
Appellant appealed the Court of Appeals' decision to this Court. While that case was pending here, we decided Trimble v. Gordon, 430 U.S. 762 (1977). Because the issues in these two cases were similar in some respects, we vacated and remanded to permit further consideration in light of Trimble. Lalli v. Lalli, 431 U.S. 911 (1977).
*264 On remand,[4] the New York Court of Appeals, with two judges dissenting, adhered to its former disposition. In re Lalli, 43 N.Y. 2d 65, 371 N.E.2d 481 (1977). It acknowledged that Trimble contemplated a standard of judicial review demanding more than "a mere finding of some remote rational relationship between the statute and a legitimate State purpose," 43 N.Y. 2d, at 67, 371 N.E.2d, at 482, though less than strictest scrutiny. Finding § 4-1.2 to be "significantly and determinatively different" from the statute overturned in Trimble, the court ruled that the New York law was sufficiently related to the State's interest in " `the orderly settlement of estates and the dependability of titles to property passing under intestacy laws,' " 43 N.Y. 2d, at 67, 69-70, 371 N.E.2d, at 482-483, quoting Trimble, supra, at 771, to meet the requirements of equal protection.
Appellant again sought review here, and we noted probable jurisdiction. 435 U.S. 921 (1978). We now affirm.
II
We begin our analysis with Trimble. At issue in that case was the constitutionality of an Illinois statute providing that a child born out of wedlock could inherit from his intestate father only if the father had "acknowledged" the child and the child had been legitimated by the intermarriage of the parents. The appellant in Trimble was a child born out of wedlock whose father had neither acknowledged her nor married her mother. He had, however, been found to be her father in a judicial decree ordering him to contribute to her support. When the father died intestate, the child was excluded as a distributee because the statutory requirements for inheritance had not been met.
We concluded that the Illinois statute discriminated against *265 illegitimate children in a manner prohibited by the Equal Protection Clause. Although, as decided in Mathews v. Lucas, 427 U.S. 495, 506 (1976), and reaffirmed in Trimble, supra, at 767, classifications based on illegitimacy are not subject to "strict scrutiny," they nevertheless are invalid under the Fourteenth Amendment if they are not substantially related to permissible state interests. Upon examination, we found that the Illinois law failed that test.
Two state interests were proposed which the statute was said to foster: the encouragement of legitimate family relationships and the maintenance of an accurate and efficient method of disposing of an intestate decedent's property. Granting that the State was appropriately concerned with the integrity of the family unit, we viewed the statute as bearing "only the most attenuated relationship to the asserted goal." Trimble, supra, at 768. We again rejected the argument that "persons will shun illicit relations because the offspring may not one day reap the benefits" that would accrue to them were they legitimate. Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 173 (1972). The statute therefore was not defensible as an incentive to enter legitimate family relationships.
Illinois' interest in safeguarding the orderly disposition of property at death was more relevant to the statutory classification. We recognized that devising "an appropriate legal framework" in the furtherance of that interest "is a matter particularly within the competence of the individual States." Trimble, supra, at 771. An important aspect of that framework is a response to the often difficult problem of proving the paternity of illegitimate children and the related danger of spurious claims against intestate estates. See infra, at 270-271. These difficulties, we said, "might justify a more demanding standard for illegitimate children claiming under their fathers' estates than that required either for illegitimate children claiming under their mothers' estates or for legitimate children generally." Trimble, supra, at 770.
*266 The Illinois statute, however, was constitutionally flawed because, by insisting upon not only an acknowledgment by the father, but also the marriage of the parents, it excluded "at least some significant categories of illegitimate children of intestate men [whose] inheritance rights can be recognized without jeopardizing the orderly settlement of estates or the dependability of titles to property passing under intestacy laws." Id., at 771. We concluded that the Equal Protection Clause required that a statute placing exceptional burdens on illegitimate children in the furtherance of proper state objectives must be more " `carefully tuned to alternative considerations.' " id., at 772, quoting Mathews v. Lucas, supra, at 513, than was true of the broad disqualification in the Illinois law.
III
The New York statute, enacted in 1965, was intended to soften the rigors of previous law which permitted illegitimate children to inherit only from their mothers. See infra, at 269. By lifting the absolute bar to paternal inheritance, § 4-1.2 tended to achieve its desired effect. As in Trimble, however, the question before us is whether the remaining statutory obstacles to inheritance by illegitimate children can be squared with the Equal Protection Clause.
A
At the outset we observe that § 4-1.2 is different in important respects from the statutory provision overturned in Trimble. The Illinois statute required, in addition to the father's acknowledgment of paternity, the legitimation of the child through the intermarriage of the parents as an absolute precondition to inheritance. This combination of requirements eliminated "the possibility of a middle ground between the extremes of complete exclusion and case-by-case determination of paternity." Trimble, 430 U. S., at 770-771. As *267 illustrated by the facts in Trimble, even a judicial declaration of paternity was insufficient to permit inheritance.
Under § 4-1.2, by contrast, the marital status of the parents is irrelevant. The single requirement at issue here is an evidentiary onethat the paternity of the father be declared in a judicial proceeding sometime before his death.[5] The child need not have been legitimated in order to inherit from his father. Had the appellant in Trimble been governed by § 4-1.2, she would have been a distributee of her father's estate. See In re Lalli, 43 N.Y. 2d, at 68 n. 2, 371 N.E.2d, at 482 n. 2.
A related difference between the two provisions pertains to the state interests said to be served by them. The Illinois law was defended, in part, as a means of encouraging legitimate family relationships. No such justification has been offered in support of § 4-1.2. The Court of Appeals disclaimed that the purpose of the statute, "even in small part, *268 was to discourage illegitimacy, to mold human conduct or to set societal norms." In re Lalli, supra, at 70, 371 N.E.2d, at 483. The absence in § 4-1.2 of any requirement that the parents intermarry or otherwise legitimate a child born out of wedlock and our review of the legislative history of the statute, infra, at 269-271, confirm this view.
Our inquiry, therefore, is focused narrowly. We are asked to decide whether the discrete procedural demands that § 4-1.2 places on illegitimate children bear an evident and substantial relation to the particular state interests this statute is designed to serve.
B
The primary state goal underlying the challenged aspects of § 4-1.2 is to provide for the just and orderly disposition of property at death.[6] We long have recognized that this is an area with which the States have an interest of considerable magnitude. Trimble, supra, at 771; Weber v. Aetna Casualty & Surety Co., 406 U. S., at 170; Labine v. Vincent, 401 U. S., at 538; see also Lyeth v. Hoey, 305 U.S. 188, 193 (1938); Mager v. Grima, 8 How. 490, 493 (1850).
This interest is directly implicated in paternal inheritance by illegitimate children because of the peculiar problems of proof that are involved. Establishing maternity is seldom difficult. As one New York Surrogate's Court has observed:
"[T]he birth of the child is a recorded or registered event usually taking place in the presence of others. In most cases the child remains with the mother and for a time is necessarily reared by her. That the child is the child of a particular woman is rarely difficult to prove." In re Ortiz, 60 Misc. 2d *269 756, 761, 303 N. Y. S. 2d 806, 812 (1969). Proof of paternity, by contrast, frequently is difficult when the father is not part of a formal family unit. "The putative father often goes his way unconscious of the birth of a child. Even if conscious, he is very often totally unconcerned because of the absence of any ties to the mother. Indeed the mother may not know who is responsible for her pregnancy." Ibid. (emphasis in original); accord, In re Flemm, 85 Misc. 2d 855, 861, 381 N. Y. S. 2d 573, 576-577 (Surr. Ct. 1975); In re Hendrix, 68 Misc. 2d, at 443, 326 N. Y. S. 2d, at 650; cf. Trimble, supra, at 770, 772.
Thus, a number of problems arise that counsel against treating illegitimate children identically to all other heirs of an intestate father. These were the subject of a comprehensive study by the Temporary State Commission on the Modernization, Revision and Simplification of the Law of Estates. This group, known as the Bennett Commission,[7] consisted of individuals experienced in the practical problems of estate administration. In re Flemm, supra, at 858, 381 N. Y. S. 2d, at 575. The Commission issued its report and recommendations to the legislature in 1965. See Fourth Report of the Temporary State Commission on the Modernization, Revision and Simplification of the Law of Estates, Legis. Doc. No. 19 (1965) (hereinafter Commission Report). The statute now codified as § 4-1.2 was included.
Although the overarching purpose of the proposed statute was "to alleviate the plight of the illegitimate child," Commission Report 37, the Bennett Commission considered it necessary to impose the strictures of § 4-1.2 in order to mitigate serious difficulties in the administration of the estates of *270 both testate and intestate decedents. The Commission's perception of some of these difficulties was described by Surrogate Sobel, a member of "the busiest [surrogate's] court in the State measured by the number of intestate estates which traffic daily through this court," In re Flemm, supra, at 857, 381 N. Y. S. 2d, at 574, and a participant in some of the Commission's deliberations:
"An illegitimate, if made an unconditional distributee in intestacy, must be served with process in the estate of his parent or if he is a distributee in the estate of the kindred of a parent. . . . And, in probating the will of his parent (though not named a beneficiary) or in probating the will of any person who makes a class disposition to `issue' of such parent, the illegitimate must be served with process. . . . How does one cite and serve an illegitimate of whose existence neither family nor personal representative may be aware? And of greatest concern, how achieve finality of decree in any estate when there always exists the possibility however remote of a secret illegitimate lurking in the buried past of a parent or an ancestor of a class of beneficiaries? Finality in decree is essential in the Surrogates' Courts since title to real property passes under such decree. Our procedural statutes and the Due Process Clause mandate notice and opportunity to be heard to all necessary parties. Given the right to intestate succession, all illegitimates must be served with process. This would be no real problem with respect to those few estates where there are `known' illegitimates. But it presents an almost insuperable burden as regards `unknown' illegitimates. The point made in the [Bennett] commission discussions was that instead of affecting only a few estates, procedural problems would be created for manysome members suggested a majority of estates." 85 Misc. 2d, at 859, 381 N. Y. S. 2d, at 575-576. *271 Cf. In re Leventritt, 92 Misc. 2d 598, 601-602, 400 N. Y. S. 2d 298, 300-301 (Surr. Ct. 1977).
Even where an individual claiming to be the illegitimate child of a deceased man makes himself known, the difficulties facing an estate are likely to persist. Because of the particular problems of proof, spurious claims may be difficult to expose. The Bennett Commission therefore sought to protect "innocent adults and those rightfully interested in their estates from fraudulent claims of heirship and harassing litigation instituted by those seeking to establish themselves as illegitimate heirs." Commission Report 265.
C
As the State's interests are substantial, we now consider the means adopted by New York to further these interests. In order to avoid the problems described above, the Commission recommended a requirement designed to ensure the accurate resolution of claims of paternity and to minimize the potential for disruption of estate administration. Accuracy is enhanced by placing paternity disputes in a judicial forum during the lifetime of the father. As the New York Court of Appeals observed in its first opinion in this case, the "availability [of the putative father] should be a substantial factor contributing to the reliability of the fact-finding process." In re Lalli, 38 N.Y. 2d, at 82, 340 N.E.2d, at 724. In addition, requiring that the order be issued during the father's lifetime permits a man to defend his reputation against "unjust accusations in paternity claims," which was a secondary purpose of § 4-1.2. Commission Report 266.
The administration of an estate will be facilitated, and the possibility of delay and uncertainty minimized, where the entitlement of an illegitimate child to notice and participation is a matter of judicial record before the administration commences. Fraudulent assertions of paternity will be much less likely to succeed, or even to arise, where the proof is put *272 before a court of law at a time when the putative father is available to respond, rather than first brought to light when the distribution of the assets of an estate is in the offing.[8]
Appellant contends that § 4-1.2, like the statute at issue in Trimble, excludes "significant categories of illegitimate children" who could be allowed to inherit "without jeopardizing the orderly settlement" of their intestate fathers' estates. Trimble, 430 U. S., at 771. He urges that those in his position "known" illegitimate children who, despite the absence of an order of filiation obtained during their fathers' lifetimes, can present convincing proof of paternitycannot rationally be denied inheritance as they pose none of the risks § 4-1.2 was intended to minimize.[9]
We do not question that there will be some illegitimate children who would be able to establish their relationship to *273 their deceased fathers without serious disruption of the administration of estates and that, as applied to such individuals, § 4-1.2 appears to operate unfairly. But few statutory classifications are entirely free from the criticism that they sometimes produce inequitable results. Our inquiry under the Equal Protection Clause does not focus on the abstract "fairness" of a state law, but on whether the statute's relation to the state interests it is intended to promote is so tenuous that it lacks the rationality contemplated by the Fourteenth Amendment.
The Illinois statute in Trimble was constitutionally unacceptable because it effected a total statutory disinheritance of children born out of wedlock who were not legitimated by the subsequent marriage of their parents. The reach of the statute was far in excess of its justifiable purposes. Section 4-1.2 does not share this defect. Inheritance is barred only where there has been a failure to secure evidence of paternity during the father's lifetime in the manner prescribed by the State. This is not a requirement that inevitably disqualifies an unnecessarily large number of children born out of wedlock.
The New York courts have interpreted § 4-1.2 liberally and in such a way as to enhance its utility to both father and child without sacrificing its strength as a procedural prophylactic. For example, a father of illegitimate children who is willing to acknowledge paternity can waive his defenses in a paternity proceeding, e. g., In re Thomas, 87 Misc. 2d 1033, 387 N. Y. S. 2d 216 (Surr. Ct. 1976), or even institute such a proceeding himself.[10] N. Y. Family Court Act § 522 (McKinney Supp. 1978); In re Flemm, 85 Misc. 2d, at 863, 381 N. Y. S. 2d, at 578. In addition, the courts have excused "technical" failures by illegitimate children to comply with *274 the statute in order to prevent unnecessary injustice. E. g., In re Niles, 53 A.D. 2d 983, 385 N. Y. S. 2d 876 (1976), appeal denied, 40 N.Y. 2d 809, 392 N. Y. S. 2d 1027 (1977) (filiation order may be signed nunc pro tunc to relate back to period prior to father's death when court's factual finding of paternity had been made); In re Kennedy, 89 Misc. 2d 551, 554, 392 N. Y. S. 2d 365, 367 (Surr. Ct. 1977) (judicial support order treated as "tantamount to an order of filiation," even though paternity was not specifically declared therein).
As the history of § 4-1.2 clearly illustrates, the New York Legislature desired to "grant to illegitimates in so far as practicable rights of inheritance on a par with those enjoyed by legitimate children," Commission Report 265 (emphasis added), while protecting the important state interests we have described. Section 4-1.2 represents a carefully considered legislative judgment as to how this balance best could be achieved.
Even if, as MR. JUSTICE BRENNAN believes, § 4-1.2 could have been written somewhat more equitably, it is not the function of a court "to hypothesize independently on the desirability or feasibility of any possible alternative[s]" to the statutory scheme formulated by New York. Mathews v. Lucas, 427 U. S., at 515. "These matters of practical judgment and empirical calculation are for [the State]. . . . In the end, the precise accuracy of [the State's] calculations is not a matter of specialized judicial competence; and we have no basis to question their detail beyond the evident consistency and substantiality." Id., at 515-516.[11]
*275 We conclude that the requirement imposed by § 4-1.2 on illegitimate children who would inherit from their fathers is substantially related to the important state interests the statute *276 is intended to promote. We therefore find no violation of the Equal Protection Clause.
The judgment of the New York Court of Appeals is
Affirmed.
For the reasons stated in his dissent in Trimble v. Gordon, 430 U.S. 762, 777 (1977), MR. JUSTICE REHNQUIST concurs in the judgment of affirmance.
MR. | This case presents a challenge to the constitutionality of 4-1. of New York's Estates, Powers, and Trusts Law,[1] which requires illegitimate children who would inherit from their fathers by intestate succession to provide a particular form of proof of paternity. Legitimate children are not subject to the same requirement. I Appellant Robert claims to be the illegitimate son of Mario who died intestate on January 7, 1973, in the State of New York. Appellant's mother, who died in 1968, never was married to Mario. After Mario's widow, Rosamond was appointed administratrix of her husband's estate, appellant petitioned the Surrogate's Court for Westchester County for a compulsory accounting, claiming that he and his sister Maureen were entitled to inherit from Mario as his children. Rosamond opposed the petition. She argued that even if Robert and Maureen were Mario's children, they were not lawful distributees of the estate because they had failed to comply with 4-1.,[] which provides in part: "An illegitimate child is the legitimate child of his *6 father so that he and his issue inherit from his father if a court of competent jurisdiction has, during the lifetime of the father, made an order of filiation declaring paternity in a proceeding instituted during the pregnancy of the mother or within two years from the birth of the child." Appellant conceded that he had not obtained an order of filiation during his putative father's lifetime. He contended, however, that 4-1., by imposing this requirement, discriminated against him on the basis of his illegitimate birth in violation of the Equal Protection Clause of the Fourteenth Amendment.[3] Appellant tendered certain evidence of his relationship with Mario including a notarized document *63 in which in consenting to appellant's marriage, referred to him as "my son," and several affidavits by persons who stated that had acknowledged openly and often that Robert and Maureen were his children. The Surrogate's Court noted that 4-1. had previously, and unsuccessfully, been attacked under the Equal Protection Clause. After reviewing recent decisions of this Court concerning discrimination against illegitimate children, particularly and three New York decisions affirming the constitutionality of the statute, In re Belton, ; In re ; In re Crawford, the court ruled that appellant was properly excluded as a distributee of 's estate and therefore lacked status to petition for a compulsory accounting. On direct appeal the New York Court of Appeals affirmed. In re It understood Labine to require the State to show no more than that "there is a rational basis for the means chosen by the Legislature for the accomplishment of a permissible State objective." After discussing the problems of proof peculiar to establishing paternity, as opposed to maternity, the court concluded that the State was constitutionally entitled to require a judicial decree during the father's lifetime as the exclusive form of proof of paternity. Appellant appealed the Court of Appeals' decision to this Court. While that case was pending here, we decided Because the issues in these two cases were similar in some respects, we vacated and remanded to permit further consideration in light of *64 On remand,[4] the New York Court of Appeals, with two judges dissenting, adhered to its former disposition. In re It acknowledged that contemplated a standard of judicial review demanding more than "a mere finding of some remote rational relationship between the statute and a legitimate State purpose," though less than strictest scrutiny. Finding 4-1. to be "significantly and determinatively different" from the statute overturned in the court ruled that the New York law was sufficiently related to the State's interest in " `the orderly settlement of estates and the dependability of titles to property passing under intestacy laws,' " -483, quoting to meet the requirements of equal protection. Appellant again sought review here, and we noted probable jurisdiction. We now affirm. II We begin our analysis with At issue in that case was the constitutionality of an Illinois statute providing that a child born out of wedlock could inherit from his intestate father only if the father had "acknowledged" the child and the child had been legitimated by the intermarriage of the parents. The appellant in was a child born out of wedlock whose father had neither acknowledged her nor married her mother. He had, however, been found to be her father in a judicial decree ordering him to contribute to her support. When the father died intestate, the child was excluded as a distributee because the statutory requirements for inheritance had not been met. We concluded that the Illinois statute discriminated against *65 illegitimate children in a manner prohibited by the Equal Protection Clause. Although, as decided in and reaffirmed in classifications based on illegitimacy are not subject to "strict scrutiny," they nevertheless are invalid under the Fourteenth Amendment if they are not substantially related to permissible state interests. Upon examination, we found that the Illinois law failed that test. Two state interests were proposed which the statute was said to foster: the encouragement of legitimate family relationships and the maintenance of an accurate and efficient method of disposing of an intestate decedent's property. Granting that the State was appropriately concerned with the integrity of the family unit, we viewed the statute as bearing "only the most attenuated relationship to the asserted goal." We again rejected the argument that "persons will shun illicit relations because the offspring may not one day reap the benefits" that would accrue to them were they legitimate. The statute therefore was not defensible as an incentive to enter legitimate family relationships. Illinois' interest in safeguarding the orderly disposition of property at death was more relevant to the statutory classification. We recognized that devising "an appropriate legal framework" in the furtherance of that interest "is a matter particularly within the competence of the individual States." An important aspect of that framework is a response to the often difficult problem of proving the paternity of illegitimate children and the related danger of spurious claims against intestate estates. See infra, -71. These difficulties, we said, "might justify a more demanding standard for illegitimate children claiming under their fathers' estates than that required either for illegitimate children claiming under their mothers' estates or for legitimate children generally." *66 The Illinois statute, however, was constitutionally flawed because, by insisting upon not only an acknowledgment by the father, but also the marriage of the parents, it excluded "at least some significant categories of illegitimate children of intestate men [whose] inheritance rights can be recognized without jeopardizing the orderly settlement of estates or the dependability of titles to property passing under intestacy laws." We concluded that the Equal Protection Clause required that a statute placing exceptional burdens on illegitimate children in the furtherance of proper state objectives must be more " `carefully tuned to alternative considerations.' " quoting than was true of the broad disqualification in the Illinois law. III The New York statute, enacted in 1965, was intended to soften the rigors of previous law which permitted illegitimate children to inherit only from their mothers. See infra, at 69. By lifting the absolute bar to paternal inheritance, 4-1. tended to achieve its desired effect. As in however, the question before us is whether the remaining statutory obstacles to inheritance by illegitimate children can be squared with the Equal Protection Clause. A At the outset we observe that 4-1. is different in important respects from the statutory provision overturned in The Illinois statute required, in addition to the father's acknowledgment of paternity, the legitimation of the child through the intermarriage of the parents as an absolute precondition to inheritance. This combination of requirements eliminated "the possibility of a middle ground between the extremes of complete exclusion and case-by-case determination of paternity." 430 U. S., -771. As *67 illustrated by the facts in even a judicial declaration of paternity was insufficient to permit inheritance. Under 4-1., by contrast, the marital status of the parents is irrelevant. The single requirement at issue here is an evidentiary onethat the paternity of the father be declared in a judicial proceeding sometime before his death.[5] The child need not have been legitimated in order to inherit from his father. Had the appellant in been governed by 4-1., she would have been a distributee of her father's estate. See In re n. n. A related difference between the two provisions pertains to the state interests said to be served by them. The Illinois law was defended, in part, as a means of encouraging legitimate family relationships. No such justification has been offered in support of 4-1. The Court of Appeals disclaimed that the purpose of the statute, "even in small part, *68 was to discourage illegitimacy, to mold human conduct or to set societal norms." In re 371 N.E.d, at 483. The absence in 4-1. of any requirement that the parents intermarry or otherwise legitimate a child born out of wedlock and our review of the legislative history of the statute, infra, at 69-71, confirm this view. Our inquiry, therefore, is focused narrowly. We are asked to decide whether the discrete procedural demands that 4-1. places on illegitimate children bear an evident and substantial relation to the particular state interests this statute is designed to serve. B The primary state goal underlying the challenged aspects of 4-1. is to provide for the just and orderly disposition of property at death.[6] We long have recognized that this is an area with which the States have an interest of considerable magnitude. ; 406 U. S., at 1; ; see also ; This interest is directly implicated in paternal inheritance by illegitimate children because of the peculiar problems of proof that are involved. Establishing maternity is seldom difficult. As one New York Surrogate's Court has observed: "[T]he birth of the child is a recorded or registered event usually taking place in the presence of others. In most cases the child remains with the mother and for a time is necessarily reared by her. That the child is the child of a particular woman is rarely difficult to prove." In re Ortiz, 60 Misc. d *69 756, 761, 303 N. Y. S. d 806, 81 (1969). Proof of paternity, by contrast, frequently is difficult when the father is not part of a formal family unit. "The putative father often goes his way unconscious of the birth of a child. Even if conscious, he is very often totally unconcerned because of the absence of any ties to the mother. Indeed the mother may not know who is responsible for her pregnancy." ; accord, In re 85 Misc. d 855, 381 N. Y. S. d 573, 576-577 ; In re 68 Misc. d, at 443, 36 N. Y. S. d, at 650; cf. 77. Thus, a number of problems arise that counsel against treating illegitimate children identically to all other heirs of an intestate father. These were the subject of a comprehensive study by the Temporary State Commission on the Modernization, Revision and Simplification of the Law of Estates. This group, known as the Bennett Commission,[7] consisted of individuals experienced in the practical problems of estate administration. In re 381 N. Y. S. d, at 575. The Commission issued its report and recommendations to the legislature in 1965. See Fourth Report of the Temporary State Commission on the Modernization, Revision and Simplification of the Law of Estates, Legis. Doc. No. 19 (1965) (hereinafter Commission Report). The statute now codified as 4-1. was included. Although the overarching purpose of the proposed statute was "to alleviate the plight of the illegitimate child," Commission Report 37, the Bennett Commission considered it necessary to impose the strictures of 4-1. in order to mitigate serious difficulties in the administration of the estates of * both testate and intestate decedents. The Commission's perception of some of these difficulties was described by Surrogate Sobel, a member of "the busiest [surrogate's] court in the State measured by the number of intestate estates which traffic daily through this court," In re 381 N. Y. S. d, at 574, and a participant in some of the Commission's deliberations: "An illegitimate, if made an unconditional distributee in intestacy, must be served with process in the estate of his parent or if he is a distributee in the estate of the kindred of a parent. And, in probating the will of his parent (though not named a beneficiary) or in probating the will of any person who makes a class disposition to `issue' of such parent, the illegitimate must be served with process. How does one cite and serve an illegitimate of whose existence neither family nor personal representative may be aware? And of greatest concern, how achieve finality of decree in any estate when there always exists the possibility however remote of a secret illegitimate lurking in the buried past of a parent or an ancestor of a class of beneficiaries? Finality in decree is essential in the Surrogates' Courts since title to real property passes under such decree. Our procedural statutes and the Due Process Clause mandate notice and opportunity to be heard to all necessary parties. Given the right to intestate succession, all illegitimates must be served with process. This would be no real problem with respect to those few estates where there are `known' illegitimates. But it presents an almost insuperable burden as regards `unknown' illegitimates. The point made in the [Bennett] commission discussions was that instead of affecting only a few estates, procedural problems would be created for manysome members suggested a majority of estates." 85 Misc. d, at 859, 381 N. Y. S. d, at 575-576. *71 Cf. In re Leventritt, 9 Misc. d 598, 601-60, 400 N. Y. S. d 98, 300-301 Even where an individual claiming to be the illegitimate child of a deceased man makes himself known, the difficulties facing an estate are likely to persist. Because of the particular problems of proof, spurious claims may be difficult to expose. The Bennett Commission therefore sought to protect "innocent adults and those rightfully interested in their estates from fraudulent claims of heirship and harassing litigation instituted by those seeking to establish themselves as illegitimate heirs." Commission Report 65. C As the State's interests are substantial, we now consider the means adopted by New York to further these interests. In order to avoid the problems described above, the Commission recommended a requirement designed to ensure the accurate resolution of claims of paternity and to minimize the potential for disruption of estate administration. Accuracy is enhanced by placing paternity disputes in a judicial forum during the lifetime of the father. As the New York Court of Appeals observed in its first opinion in this case, the "availability [of the putative father] should be a substantial factor contributing to the reliability of the fact-finding process." In re 38 N.Y. d, at 8, 340 N.E.d, at 74. In addition, requiring that the order be issued during the father's lifetime permits a man to defend his reputation against "unjust accusations in paternity claims," which was a secondary purpose of 4-1. Commission Report 66. The administration of an estate will be facilitated, and the possibility of delay and uncertainty minimized, where the entitlement of an illegitimate child to notice and participation is a matter of judicial record before the administration commences. Fraudulent assertions of paternity will be much less likely to succeed, or even to arise, where the proof is put *7 before a court of law at a time when the putative father is available to respond, rather than first brought to light when the distribution of the assets of an estate is in the offing.[8] Appellant contends that 4-1., like the statute at issue in excludes "significant categories of illegitimate children" who could be allowed to inherit "without jeopardizing the orderly settlement" of their intestate fathers' estates. 430 U. S., He urges that those in his position "known" illegitimate children who, despite the absence of an order of filiation obtained during their fathers' lifetimes, can present convincing proof of paternitycannot rationally be denied inheritance as they pose none of the risks 4-1. was intended to minimize.[9] We do not question that there will be some illegitimate children who would be able to establish their relationship to *73 their deceased fathers without serious disruption of the administration of estates and that, as applied to such individuals, 4-1. appears to operate unfairly. But few statutory classifications are entirely free from the criticism that they sometimes produce inequitable results. Our inquiry under the Equal Protection Clause does not focus on the abstract "fairness" of a state law, but on whether the statute's relation to the state interests it is intended to promote is so tenuous that it lacks the rationality contemplated by the Fourteenth Amendment. The Illinois statute in was constitutionally unacceptable because it effected a total statutory disinheritance of children born out of wedlock who were not legitimated by the subsequent marriage of their parents. The reach of the statute was far in excess of its justifiable purposes. Section 4-1. does not share this defect. Inheritance is barred only where there has been a failure to secure evidence of paternity during the father's lifetime in the manner prescribed by the State. This is not a requirement that inevitably disqualifies an unnecessarily large number of children born out of wedlock. The New York courts have interpreted 4-1. liberally and in such a way as to enhance its utility to both father and child without sacrificing its strength as a procedural prophylactic. For example, a father of illegitimate children who is willing to acknowledge paternity can waive his defenses in a paternity proceeding, e. g., In re Thomas, 87 Misc. d 1033, 387 N. Y. S. d 16 or even institute such a proceeding himself.[10] N. Y. Family Court Act 5 ; In re 85 Misc. d, at 863, 381 N. Y. S. d, at 578. In addition, the courts have excused "technical" failures by illegitimate children to comply with *74 the statute in order to prevent unnecessary injustice. E. g., In re Niles, 53 A.D. d 983, 385 N. Y. S. d 876 appeal denied, 40 N.Y. d 809, 39 N. Y. S. d 107 ; In re Kennedy, 89 Misc. d 551, 39 N. Y. S. d 365, 367 As the history of 4-1. clearly illustrates, the New York Legislature desired to "grant to illegitimates in so far as practicable rights of inheritance on a par with those enjoyed by legitimate children," Commission Report 65 (emphasis added), while protecting the important state interests we have described. Section 4-1. represents a carefully considered legislative judgment as to how this balance best could be achieved. Even if, as MR. JUSTICE BRENNAN believes, 4-1. could have been written somewhat more equitably, it is not the function of a court "to hypothesize independently on the desirability or feasibility of any possible alternative[s]" to the statutory scheme formulated by New York. 47 U. S., at 515. "These matters of practical judgment and empirical calculation are for [the State]. In the end, the precise accuracy of [the State's] calculations is not a matter of specialized judicial competence; and we have no basis to question their detail beyond the evident consistency and substantiality."[11] *75 We conclude that the requirement imposed by 4-1. on illegitimate children who would inherit from their fathers is substantially related to the important state interests the statute *76 is intended to promote. We therefore find no violation of the Equal Protection Clause. The judgment of the New York Court of Appeals is Affirmed. For the reasons stated in his dissent in MR. JUSTICE REHNQUIST concurs in the judgment of affirmance. MR. |
Justice Rehnquist | majority | false | International Telephone & Telegraph Corp. v. Electrical Workers | 1975-01-14T00:00:00 | null | https://www.courtlistener.com/opinion/109129/international-telephone-telegraph-corp-v-electrical-workers/ | https://www.courtlistener.com/api/rest/v3/clusters/109129/ | 1,975 | 1974-021 | 1 | 9 | 0 | In 1947 Congress responded to the labor unrest caused by jurisdictional disputes by adding § 8 (b) (4) (D) to the National Labor Relations Act, which made it an unfair labor practice for a labor organization to induce the employees of any employer to strike in the hopes of forcing an employer to assign particular work to employees in a particular labor organization.[1] In the belief *431 that resolution of jurisdictional disputes was more important to industrial peace than the imposition of unfair labor practice sanctions. NLRB v. Radio Engineers, 364 U.S. 573, 576-577 (1961) (hereinafter CBS), Congress at the same time enacted § 10 (k), 29 U.S. C. § 160 (k),[2] to induce unions to settle their differences without awaiting unfair labor practice proceedings and enforcement of Board orders by courts of appeals.
One year earlier Congress had responded to the many expressed concerns for fairness and regularity in the administrative process summarized in Wong Yang Sung v. McGrath, 339 U.S. 33, 36-41 (1950), by enacting the Administrative Procedure Act (Act).[3] Section 5 of that Act, now 5 U.S. C. § 554, establishes requirements governing certain agency proceedings that come within the Act's definition of "adjudication." We granted certiorari to the Court of Appeals for the Seventh Circuit in this *432 case, 416 U.S. 981 (1974), to review its conclusion that 5 U.S. C. § 554 applied to a § 10 (k) proceeding conducted by the Board. 486 F.2d 863 (1973). Another Court of Appeals had decided a short time earlier that such a Board proceeding was not subject to § 554, Bricklayers v. NLRB, 155 U. S. App. D. C. 47, 475 F.2d 1316 (1973).
The case now before us arose out of a jurisdictional dispute between respondent Local 134 of the International Brotherhood of Electrical Workers (IBEW) (hereafter respondent) and the Communications Workers of America (CWA) over whose members would perform certain telephone installation work in Cook County, Ill. Petitioner International Telephone & Telegraph Corp., which had a nationwide collective-bargaining agreement with the CWA, had established a communications equipment and systems division to sell and install private telephone systems.[4] In 1970 petitioner entered into a contract with the village of Elk Grove, Ill., for the installation and sale of a switching system and related telephone and circuitry work. Since employees of the Illinois Bell Telephone Co., who were members of respondent, had already run trunklines from the local operating telephone system to the Administrative Office of the village, petitioner's contract covered only the remaining two stages necessary to complete installation of the system. First the telephone cable had to be routed from the telephone room in the basement to the telephone instruments in particular rooms and offices by a process known as "pulling cable"; petitioner subcontracted this work to the C. A. Riley Electric Construction Co., *433 whose employees are represented by respondent. Second, by a process known as "terminating the cable," the cable would be connected to the telephone instruments. Petitioner planned to have its own technicians, who were represented by the CWA, perform this work.
C. A. Riley had hoped to perform the terminating work and inquired of petitioner's supervisor whether that was possible. The supervisor informed Riley of petitioner's plan to have its own employees do the work, and Riley told the supervisor that petitioner's representatives had better meet with the business agent of respondent. On two occasions petitioner's representatives met with the union business agent, who told them that respondent installed all telephone equipment in Cook County and that CWA members would install no telephone equipment in Cook County. On the second occasion the respondent's business agent was quite explicit: "We'd better get that work or there will be trouble."[5]
When CWA employees appeared at the jobsite on December 3, 1970, to begin their portion of the work. all of respondent's members left their jobs.[6] That afternoon *434 a representative of the village of Elk Grove met with petitioner's regional sales manager, and they agreed to pull petitioner's employees off the job temporarily. Representatives of respondent were informed, and all Local 134 employees thereafter returned to work.[7]
On December 3, 1970, petitioner filed a charge alleging that respondent had violated § 8 (b) (4) (D) of the National Labor Relations Act, 29 U.S. C. § 158 (b) (4) (D). The Board's Regional Director found reasonable cause to believe that the charge had merit and proceeded in accordance with the language of § 10 (k):
"Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph (4) (D) of section 158 (b) of this title, the Board is empowered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen, unless, within ten days after notice that such charge has been filed, the parties to such dispute submit to the Board satisfactory evidence that they have adjusted, or agreed upon methods for the voluntary adjustment of, the dispute. Upon compliance by the parties to the dispute with the decision of the Board or upon such voluntary adjustment of the dispute, such charge shall be dismissed." 29 U.S. C. § 160 (k).
Respondent was notified that a hearing would be conducted by a hearing officer[8] upon the dispute alleged in *435 the charge, and the hearing was held on March 12, 15, and 17, 1971, with Stephen S. Schulson, an attorney in the regional office, presiding. All parties appeared at the hearing and were given full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. In accordance with NLRB regulations, the record was transmitted to the Board for decision without any recommendation from the hearing officer.[9] The Board received briefs from petitioner, respondent, and the CWA, and concluded that employees represented by the CWA were entitled to perform the work in dispute. 191 N. L. R. B. 828 (1971). On August 30, 1971, respondent notified the Regional Director that it would not comply with the Board's § 10 (k) determination. The Regional Director, on behalf of the Board's General Counsel, then issued a complaint upon the § 8 (b) (4) (D) unfair labor practice charge that had been held in abeyance pending the attempt to resolve the dispute pursuant to the § 10 (k) proceeding. At the hearing before a trial examiner, the General Counsel was represented by the same attorney who had presided over the compilation of testimony for *436 the Board in the § 10 (k) proceeding. The trial examiner concluded that respondent had violated § 8 (b) (4) (D) and he recommended that it be ordered to cease its unlawful conduct; exceptions were filed with the Board[10] which it overruled in ordering respondent to cease and desist from its unlawful conduct. 197 N. L. R. B. 879 (1972).
Respondent filed a petition to review and set aside the Board's order in the Court of Appeals for the Seventh Circuit, and the Board filed a cross-application for enforcement of its order.[11] The Court of Appeals found respondent's conduct to be "the very activity § 8 (b) (4) (D) was intended to prohibit," 486 F.2d, at 866, but refused to enforce the Board's order because it decided that the Board had not complied with the Act, 5 U.S. C. § 554.[12] The court was under the impression that the *437 parties had "admitted that § 554 applies to § 10 (k) hearings," 486 F.2d, at 867, and regarded the participation by Schulson in both proceedings as a violation of 5 U.S. C. *438 § 554 (d), which prohibits commingling prosecutorial and adjudicatory functions. See n. 12, supra. Even though the Board had argued that the § 10 (k) proceeding "was without binding effect on anyone" so that "it was not improper for the same person to perform the functions of hearing officer and subsequently prosecute an unfair labor practice charge based upon the evidence adduced at that hearing," the Court of Appeals relied upon this Court's opinion in NLRB v. Plasterers' Union, 404 U.S. 116 (1971), to support its conclusion that "the hearing officer's rulings at the § 10 (k) hearing largely determine what evidence the Board will have to consider at the Unfair Labor Practice Hearing . . . ." 486 F.2d, at 866-867. With that perspective, the Court of Appeals found the attorney's participation to be "plainly inconsistent with both the spirit and the letter of the Act." Id., at 868.
I
To determine whether § 554 governs proceedings conducted under § 10 (k) of the National Labor Relations Act necessitates some understanding of both statutory provisions which, as noted above, were enacted within a year of each other. The Administrative Procedure Act was aptly described in Wong Yang Sung, supra, as "a new, basic and comprehensive regulation of procedures in many agencies," 339 U.S., at 36. The Court there *439 further observed that the Act "contains many compromises and generalities and, no doubt, some ambiguities." Id., at 40-41. Because it was designed to regulate administrative proceedings throughout a wide spectrum of agency activities, its language is necessarily abstract in many places. The more we may know about the particular agency proceedings to which the Act is sought to be applied, the better we will be able to apply it.
The events leading up to the enactment of §§ 8 (b) (4) (D) and 10 (k) have been recounted by this Court in CBS, supra, and Plasterers' Union, supra, and need not here be reviewed in detail. Congress made the judgment "that it is more important to industrial peace that jurisdictional disputes be settled permanently than it is that unfair labor practice sanctions for jurisdictional strikes be imposed upon unions." CBS, 364 U. S., at 577. Voluntary and therefore prompt resolution of such jurisdictional disputes is encouraged both by the 10-day grace period following notice of the filing of an unfair labor practice charge, and by the dismissal of such a charge if the union complies with the Board's adverse § 10 (k) determination. 29 CFR § 101.36.
To effectuate the congressional objective of prompt resolution of jurisdictional disputes, almost from the date of the enactment of § 10 (k), the Board has applied procedures to proceedings under that section that are quite different from those of a proceeding under § 8 (b) (4) (D). The § 10 (k) hearing is described in the Board's regulations:
"If the parties have not adjusted the dispute or agreed upon methods of voluntary adjustment, a hearing, usually open to the public, is held before a hearing officer. The hearing is nonadversary in character, and the primary interest of the hearing officer is to insure that the record contains as full a *440 statement of the pertinent facts as may be necessary for a determination of the issues by the Board. All parties are afforded full opportunity to present their respective positions and to produce evidence in support of their contentions. The parties are permitted to argue orally on the record before the hearing officer. At the close of the hearing, the case is transmitted to the Board for decision. The hearing officer prepares an analysis of the issues and the evidence, but makes no recommendations in regard to resolution of the dispute." 29 CFR § 101.34.
Streamlined procedures were both designed and justified because "the decision in the proceedings under Section 10 (k) is a preliminary administrative determination made for the purpose of attempting to resolve a dispute within the meaning of that section; the unfair labor practice itself is litigated at a subsequent hearing before a Trial Examiner in the event the dispute remains unresolved." National Union of Marine Cooks & Stewards (Irwin-Lyons Lumber Co.), 83 N. L. R. B. 341 (1949).[13]
*441 The Board concluded from this analysis of the nature of the § 10 (k) proceeding that the provisions of the Act governing adjudications were not applicable. While an agency's interpretation of the Act may not be entitled to the same weight as the agency's interpretation of its own substantive mandate, see United States v. Florida East Coast R. Co., 410 U.S. 224, 236 n. 6 (1973), its characterization of its own proceeding is entitled to weight, and that characterization may in turn have relevance in determining the applicability of the Act.
II
The question which we must decide here is whether the § 10 (k) determination is an "adjudication" governed by the Act, 5 U.S. C. § 554. The Court of Appeals did not consider in any detail whether § 554 governs § 10 (k) proceedings since it was under the impression that the parties had conceded the general applicability of this *442 section to such hearings. 486 F.2d, at 867. Petitioner and the Board contend that the Court of Appeals was mistaken with respect to any such concession, and state that they argued both in their principal briefs and in their petitions for rehearing that § 554 was not applicable. Respondent acknowledges that no such concession was made,[14] and we therefore address the issue on its merits.
If one were to start with the proposition that all administrative action falls into one of two categories, rulemaking or adjudication, the § 10 (k) determination certainly is closer to the latter than to the former. But such light as we have on the intention of Congress when it enacted the Act does not indicate that this is a sound starting point. Knowledgeable authorities in this field observed shortly after passage of the Act that "certain types of agency action are neither rule making nor adjudication." Ginnane, "Rule Making," "Adjudication" and Exemptions Under the Administrative Procedure Act, 95 U. Pa. L. Rev. 621, 633 (1947); Netterville, The Administrative Procedure Act: A Study in Interpretation, 20 Geo. Wash. L. Rev. 1, 33 (1951); cf. Attorney General's Manual on the Administrative Procedure Act 40 (1947).
Section 554 applies "in every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing,"[15] and 5 *443 U. S. C. § 551 (7), defines "adjudication" as "agency process for the formulation of an order"; "order" is in turn defined as "the whole or a part of a final disposition . . . of an agency in a matter other than rule making but including licensing," 5 U.S. C. § 551 (6). While one might argue that an intermediate proceeding within an agency is necessarily a "part" of a "final order," we think a sounder interpretation of the language Congress used is that the phrase "whole or a part" refers to components of that which is itself the final disposition required by the definition of "order" in § 551 (6). Intermediate proceedings within an agency may be subject to the provisions of § 554, however, by virtue of the fact that they are "agency process for the formulation of an order" rather than because their product is a "part" of the final disposition. Thus if the Board's § 10 (k) determination is itself a "final disposition" of a Board proceeding or is "agency process for the formulation" of an order in a resulting § 8 (b) (4) (D) proceeding, then the § 10 (k) proceeding is governed by 5 U.S. C. § 554.
In a tautological sense, of course, the Board's determination in a § 10 (k) proceeding is a "final disposition" of that proceeding, but we think that when Congress defined "order" in terms of a "final disposition," it required that "final disposition" to have some determinate consequences for the party to the proceeding. The Board does not order anybody to do anything at the conclusion of a § 10 (k) proceeding. As the Attorney General's Manual on the Administrative Procedure Act 40 (1947) observed: "[I]nvestigatory proceedings, no matter how formal, which do not lead to the issuance of an order containing the element of final disposition as required by the definition, do not constitute adjudication." This *444 Court noted in Plasterers' Union, 404 U. S., at 126, that "the § 10 (k) decision standing alone, binds no one." We conclude, therefore, that the § 10 (k) determination is not itself a "final disposition" within the meaning of "order" and "adjudication" in 5 U.S. C. §§ 551 (6), (7).
Respondent's principal argument for affirmance of this case rests on the contention that although the § 10 (k) determination may not itself be a "final disposition," and therefore an "order," it is "agency process for the formulation" of the ultimate § 8 (b) (4) (D) order that the Board may issue.
There are undoubtedly important practical consequences in the § 8 (b) (4) (D) proceeding that result from the Board's determination in the § 10 (k) proceeding. These were described in the following language in Plasterers' Union, supra, at 126-127:
"[T]he impact of the § 10 (k) decision is felt in the § 8 (b) (4) (D) hearing because for all practical purposes the Board's award determines who will prevail in the unfair labor practice proceeding. If the picketing union persists in its conduct despite a § 10 (k) decision against it, a § 8 (b) (4) (D) complaint issues and the union will likely be found guilty of an unfair labor practice and be ordered to cease and desist. On the other hand, if that union wins the § 10 (k) decision and the employer does not comply, the employer's § 8 (b) (4) (D) case evaporates and the charges he filed against the picketing union will be dismissed. Neither the employer nor the employees to whom he has assigned the work are legally bound to observe the § 10 (k) decision, but both will lose their § 8 (b) (4) (D) protection against the picketing which may, as it did here, shut down the job. The employer will be under intense pressure, practically, to conform to the Board's decision. This is the design of the Act; Congress provided no other *445 way to implement the Board's § 10 (k) decision." (Footnote omitted.)
But we do not think that such practical consequences alone make the § 10 (k) proceeding related to the § 8 (b) (4) (D) proceeding in a manner that would make the former "agency process" for the formulation of the order in the latter. The prototype of an intermediate proceeding that is "agency process for the formulation of an order," is a hearing before an administrative law judge who makes findings of fact and conclusions of law, initially decides the case, and whose recommended decision "becomes the decision of the agency . . . unless there is an appeal to, or review on motion of, the agency." 5 U.S. C. § 557 (b). All of the parties to this case, for instance, agree that the § 8 (b) (4) (D) unfair labor practice hearing before the trial examiner (now administrative law judge) was subject to § 554 since it was "agency process for the formulation of an order."
The relationship between the § 10 (k) proceeding and the § 8 (b) (4) (D) proceeding, however, is quite distinct from the relationship between the hearing before an administrative law judge and ultimate review of his findings and recommendations by the agency. The § 10 (k) proceeding has a life of its own from the time that testimony is taken in the field by a hearing officer until the time the Board, with the record of the testimony before it but with no proposed findings or conclusions or recommendations from the hearing officer, reaches its own determination. The Board's attention in the § 10 (k) proceeding is not directed to ascertaining whether there is substantial evidence to show that a union has engaged in forbidden conduct with a forbidden objective. Those inquiries are left for the § 8 (b) (4) (D) proceeding.[16]*446 Indeed, the Board's § 10 (k) determination is not unlike an advisory opinion, since the matter may well end there. If the Board determines that employees of the charged union are entitled to the work, the § 8 (b) (4) (D) charge against it will be dismissed. 29 CFR § 102.91. If the Board determination is adverse to the charged union and the union accedes, the § 8 (b) (4) (D) charge will be dismissed and the General Counsel will not issue a complaint. Ibid. Only if the union indicates that it will not comply with the Board's determination are further proceedings necessitated, and those proceedings will be under § 8 (b) (4) (D), not § 10 (k). As this Court observed in Plasterers' Union, 404 U. S., at 122 n. 10:
"The § 10 (k) determination is not binding as such even on the striking union. If that union continues to picket despite an adverse § 10 (k) decision, the Board must prove the union guilty of a § 8 (b) (4) (D) violation before a cease-and-desist order can issue. The findings and conclusions in a § 10 (k) proceeding are not res judicata on the unfair labor practice issue in the later § 8 (b) (4) (D) determination. International Typographical Union, 125 N. L. R. B. 759, 761 (1959). Both parties may put *447 in new evidence at the § 8 (b) (4) (D) stage, although often, as in the present cases, the parties agree to stipulate the record of the § 10 (k) hearing as a basis for the Board's determination of the unfair labor practice. Finally, to exercise its powers under § 10 (k), the Board need only find that there is reasonable cause to believe that a § 8 (b) (4) (D) violation has occurred, while in the § 8 (b) (4) (D) proceeding itself the Board must find by a preponderance of the evidence that the picketing union has violated § 8 (b) (4) (D). International Typographical Union, supra, at 761 n. 5 (1959)."
In each case it is the agency itself, the National Labor Relations Board, which makes the ultimate determination. The same issues will generally be relevant, the record of the earlier proceeding will be admitted in the later one. 29 CFR § 102.92, and the Board's ruling on the merits of those issues which are common to the two proceedings is likely to be the same in the one as in the other. But the proceedings are nonetheless separate; the same tribunal finally determines each of them.
Were we to adopt respondent's position that merely because a § 10 (k) determination has a significant practical effect on the § 8 (b) (4) (D) proceeding, it was therefore "agency process for the formulation" of the § 8 (b) (4) (D) order, we might well sweep under the definition of that term numerous ancillary agency proceedings that are distinct from the adjudications on which they have an effect, and which the language of the Act does not appear to have been designed to reach. We therefore decline to adopt that position. We accordingly conclude that a § 10 (k) determination is neither itself a final disposition under the definitional section of the Act, nor is it "agency process for the formulation of an order" within the meaning of that section. Proceedings under *448 § 10 (k) are therefore not governed by the Act, 5 U.S. C. § 554.
Although the Board's § 10 (k) proceedings need not be conducted pursuant to the Act, 5 U.S. C. § 554, the agency remains "free under the Act to accord litigants appearing before it more procedural rights than the Act requires," Florida East Coast R. Co., 410 U. S., at 236 n. 6.[17] The Board's procedures are, of course, constrained by the Due Process Clause of the Fifth Amendment, but respondent has raised no contention that attorney Schulson's participation in both proceedings approached a constitutional violation.[18]
The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
| In 1947 Congress responded to the labor unrest caused by jurisdictional disputes by adding 8 (b) (4) (D) to the National Labor Relations Act, which made it an unfair labor practice for a labor organization to induce the employees of any employer to strike in the hopes of forcing an employer to assign particular work to employees in a particular labor organization.[1] In the belief *431 that resolution of jurisdictional disputes was more important to industrial peace than the imposition of unfair labor practice sanctions. Congress at the same time enacted 10 (k), 29 U.S. C. 160 (k),[2] to induce unions to settle their differences without awaiting unfair labor practice proceedings and enforcement of Board orders by courts of appeals. One year earlier Congress had responded to the many expressed concerns for fairness and regularity in the administrative process summarized in Wong Yang by enacting the Administrative Procedure Act (Act).[3] Section 5 of that Act, now 5 U.S. C. 554, establishes requirements governing certain agency proceedings that come within the Act's definition of "adjudication." We granted certiorari to the Court of Appeals for the Seventh Circuit in this *432 case, to review its conclusion that 5 U.S. C. 554 applied to a 10 (k) proceeding conducted by the Board. Another Court of Appeals had decided a short time earlier that such a Board proceeding was not subject to 554, The case now before us arose out of a jurisdictional dispute between respondent Local 134 of the International Brotherhood of Electrical Workers (IBEW) (hereafter respondent) and the Communications Workers of America (CWA) over whose members would perform certain telephone installation work in Cook County, Ill. Petitioner International Telephone & Telegraph Corp., which had a nationwide collective-bargaining agreement with the CWA, had established a communications equipment and systems division to sell and install private telephone systems.[4] In 1970 petitioner entered into a contract with the village of Elk Grove, Ill., for the installation and sale of a switching system and related telephone and circuitry work. Since employees of the Illinois Bell Telephone who were members of respondent, had already run trunklines from the local operating telephone system to the Administrative Office of the village, petitioner's contract covered only the remaining two stages necessary to complete installation of the system. First the telephone cable had to be routed from the telephone room in the basement to the telephone instruments in particular rooms and offices by a process known as "pulling cable"; petitioner subcontracted this work to the C. A. Riley Electric Construction *4 whose employees are represented by respondent. Second, by a process known as "terminating the cable," the cable would be connected to the telephone instruments. Petitioner planned to have its own technicians, who were represented by the CWA, perform this work. C. A. Riley had hoped to perform the terminating work and inquired of petitioner's supervisor whether that was possible. The supervisor informed Riley of petitioner's plan to have its own employees do the work, and Riley told the supervisor that petitioner's representatives had better meet with the business agent of respondent. On two occasions petitioner's representatives met with the union business agent, who told them that respondent installed all telephone equipment in Cook County and that CWA members would install no telephone equipment in Cook County. On the second occasion the respondent's business agent was quite explicit: "We'd better get that work or there will be trouble."[5] When CWA employees appeared at the jobsite on December 3, 1970, to begin their portion of the work. all of respondent's members left their jobs.[6] That afternoon *434 a representative of the village of Elk Grove met with petitioner's regional sales manager, and they agreed to pull petitioner's employees off the job temporarily. Representatives of respondent were informed, and all Local 134 employees thereafter returned to work.[7] On December 3, 1970, petitioner filed a charge alleging that respondent had violated 8 (b) (4) (D) of the National Labor Relations Act, 29 U.S. C. 158 (b) (4) (D). The Board's Regional Director found reasonable cause to believe that the charge had merit and proceeded in accordance with the language of 10 (k): "Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph (4) (D) of section 158 (b) of this title, the Board is empowered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen, unless, within ten days after notice that such charge has been filed, the parties to such dispute submit to the Board satisfactory evidence that they have adjusted, or agreed upon methods for the voluntary adjustment of, the dispute. Upon compliance by the parties to the dispute with the decision of the Board or upon such voluntary adjustment of the dispute, such charge shall be dismissed." 29 U.S. C. 160 (k). Respondent was notified that a hearing would be conducted by a hearing officer[8] upon the dispute alleged in *435 the charge, and the hearing was held on March 15, and 17, 1971, with Stephen S. Schulson, an attorney in the regional office, presiding. All parties appeared at the hearing and were given full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. In accordance with NLRB regulations, the record was transmitted to the Board for decision without any recommendation from the hearing officer.[9] The Board received briefs from petitioner, respondent, and the CWA, and concluded that employees represented by the CWA were entitled to perform the work in dispute. 191 N. L. R. B. 828 On August 30, 1971, respondent notified the Regional Director that it would not comply with the Board's 10 (k) determination. The Regional Director, on behalf of the Board's General Counsel, then issued a complaint upon the 8 (b) (4) (D) unfair labor practice charge that had been held in abeyance pending the attempt to resolve the dispute pursuant to the 10 (k) proceeding. At the hearing before a trial examiner, the General Counsel was represented by the same attorney who had presided over the compilation of testimony for *436 the Board in the 10 (k) proceeding. The trial examiner concluded that respondent had violated 8 (b) (4) (D) and he recommended that it be ordered to cease its unlawful conduct; exceptions were filed with the Board[10] which it overruled in ordering respondent to cease and desist from its unlawful conduct. 197 N. L. R. B. 879 (1972). Respondent filed a petition to review and set aside the Board's order in the Court of Appeals for the Seventh Circuit, and the Board filed a cross-application for enforcement of its order.[11] The Court of Appeals found respondent's conduct to be "the very activity 8 (b) (4) (D) was intended to prohibit," but refused to enforce the Board's order because it decided that the Board had not complied with the Act, 5 U.S. C. 554.[] The court was under the impression that the *437 parties had "admitted that 554 applies to 10 (k) hearings," and regarded the participation by Schulson in both proceedings as a violation of 5 U.S. C. *438 554 (d), which prohibits commingling prosecutorial and adjudicatory functions. See n. Even though the Board had argued that the 10 (k) proceeding "was without binding effect on anyone" so that "it was not improper for the same person to perform the functions of hearing officer and subsequently prosecute an unfair labor practice charge based upon the evidence adduced at that hearing," the Court of Appeals relied upon this Court's opinion in to support its conclusion that "the hearing officer's rulings at the 10 (k) hearing largely determine what evidence the Board will have to consider at the Unfair Labor Practice Hearing" -867. With that perspective, the Court of Appeals found the attorney's participation to be "plainly inconsistent with both the spirit and the letter of the Act." I To determine whether 554 governs proceedings conducted under 10 (k) of the National Labor Relations Act necessitates some understanding of both statutory provisions which, as noted above, were enacted within a year of each other. The Administrative Procedure Act was aptly described in Wong Yang as "a new, basic and comprehensive regulation of procedures in many agencies," The Court there *439 further observed that the Act "contains many compromises and generalities and, no doubt, some ambiguities." Because it was designed to regulate administrative proceedings throughout a wide spectrum of agency activities, its language is necessarily abstract in many places. The more we may know about the particular agency proceedings to which the Act is sought to be applied, the better we will be able to apply it. The events leading up to the enactment of 8 (b) (4) (D) and 10 (k) have been recounted by this Court in and Plasterers' and need not here be reviewed in detail. Congress made the judgment "that it is more important to industrial peace that jurisdictional disputes be settled permanently than it is that unfair labor practice sanctions for jurisdictional strikes be imposed upon unions." Voluntary and therefore prompt resolution of such jurisdictional disputes is encouraged both by the 10-day grace period following notice of the filing of an unfair labor practice charge, and by the dismissal of such a charge if the union complies with the Board's adverse 10 (k) determination. 29 CFR 101.36. To effectuate the congressional objective of prompt resolution of jurisdictional disputes, almost from the date of the enactment of 10 (k), the Board has applied procedures to proceedings under that section that are quite different from those of a proceeding under 8 (b) (4) (D). The 10 (k) hearing is described in the Board's regulations: "If the parties have not adjusted the dispute or agreed upon methods of voluntary adjustment, a hearing, usually open to the public, is held before a hearing officer. The hearing is nonadversary in character, and the primary interest of the hearing officer is to insure that the record contains as full a *440 statement of the pertinent facts as may be necessary for a determination of the issues by the Board. All parties are afforded full opportunity to present their respective positions and to produce evidence in support of their contentions. The parties are permitted to argue orally on the record before the hearing officer. At the close of the hearing, the case is transmitted to the Board for decision. The hearing officer prepares an analysis of the issues and the evidence, but makes no recommendations in regard to resolution of the dispute." 29 CFR 101.34. Streamlined procedures were both designed and justified because "the decision in the proceedings under Section 10 (k) is a preliminary administrative determination made for the purpose of attempting to resolve a dispute within the meaning of that section; the unfair labor practice itself is litigated at a subsequent hearing before a Trial Examiner in the event the dispute remains unresolved." National of Marine Cooks & Stewards (Irwin-Lyons Lumber ), 83 N. L. R. B. 341 (1949).[13] *441 The Board concluded from this analysis of the nature of the 10 (k) proceeding that the provisions of the Act governing adjudications were not applicable. While an agency's interpretation of the Act may not be entitled to the same weight as the agency's interpretation of its own substantive mandate, see United its characterization of its own proceeding is entitled to weight, and that characterization may in turn have relevance in determining the applicability of the Act. II The question which we must decide here is whether the 10 (k) determination is an "adjudication" governed by the Act, 5 U.S. C. 554. The Court of Appeals did not consider in any detail whether 554 governs 10 (k) proceedings since it was under the impression that the parties had conceded the general applicability of this *442 section to such Petitioner and the Board contend that the Court of Appeals was mistaken with respect to any such concession, and state that they argued both in their principal briefs and in their petitions for rehearing that 554 was not applicable. Respondent acknowledges that no such concession was made,[14] and we therefore address the issue on its merits. If one were to start with the proposition that all administrative action falls into one of two categories, rulemaking or adjudication, the 10 (k) determination certainly is closer to the latter than to the former. But such light as we have on the intention of Congress when it enacted the Act does not indicate that this is a sound starting point. Knowledgeable authorities in this field observed shortly after passage of the Act that "certain types of agency action are neither rule making nor adjudication." Ginnane, "Rule Making," "Adjudication" and Exemptions Under the Administrative Procedure Act, ; Netterville, The Administrative Procedure Act: A Study in Interpretation, ; cf. Attorney General's Manual on the Administrative Procedure Act 40 Section 554 applies "in every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing,"[15] and 5 *443 U. S. C. 551 (7), defines "adjudication" as "agency process for the formulation of an order"; "order" is in turn defined as "the whole or a part of a final disposition of an agency in a matter other than rule making but including licensing," 5 U.S. C. 551 (6). While one might argue that an intermediate proceeding within an agency is necessarily a "part" of a "final order," we think a sounder interpretation of the language Congress used is that the phrase "whole or a part" refers to components of that which is itself the final disposition required by the definition of "order" in 551 (6). Intermediate proceedings within an agency may be subject to the provisions of 554, however, by virtue of the fact that they are "agency process for the formulation of an order" rather than because their product is a "part" of the final disposition. Thus if the Board's 10 (k) determination is itself a "final disposition" of a Board proceeding or is "agency process for the formulation" of an order in a resulting 8 (b) (4) (D) proceeding, then the 10 (k) proceeding is governed by 5 U.S. C. 554. In a tautological sense, of course, the Board's determination in a 10 (k) proceeding is a "final disposition" of that proceeding, but we think that when Congress defined "order" in terms of a "final disposition," it required that "final disposition" to have some determinate consequences for the party to the proceeding. The Board does not order anybody to do anything at the conclusion of a 10 (k) proceeding. As the Attorney General's Manual on the Administrative Procedure Act 40 observed: "[I]nvestigatory proceedings, no matter how formal, which do not lead to the issuance of an order containing the element of final disposition as required by the definition, do not constitute adjudication." This *444 Court noted in Plasterers' 404 U. S., at 6, that "the 10 (k) decision standing alone, binds no one." We conclude, therefore, that the 10 (k) determination is not itself a "final disposition" within the meaning of "order" and "adjudication" in 5 U.S. C. 551 (6), (7). Respondent's principal argument for affirmance of this case rests on the contention that although the 10 (k) determination may not itself be a "final disposition," and therefore an "order," it is "agency process for the formulation" of the ultimate 8 (b) (4) (D) order that the Board may issue. There are undoubtedly important practical consequences in the 8 (b) (4) (D) proceeding that result from the Board's determination in the 10 (k) proceeding. These were described in the following language in Plasterers' at 6-7: "[T]he impact of the 10 (k) decision is felt in the 8 (b) (4) (D) hearing because for all practical purposes the Board's award determines who will prevail in the unfair labor practice proceeding. If the picketing union persists in its conduct despite a 10 (k) decision against it, a 8 (b) (4) (D) complaint issues and the union will likely be found guilty of an unfair labor practice and be ordered to cease and desist. On the other hand, if that union wins the 10 (k) decision and the employer does not comply, the employer's 8 (b) (4) (D) case evaporates and the charges he filed against the picketing union will be dismissed. Neither the employer nor the employees to whom he has assigned the work are legally bound to observe the 10 (k) decision, but both will lose their 8 (b) (4) (D) protection against the picketing which may, as it did here, shut down the job. The employer will be under intense pressure, practically, to conform to the Board's decision. This is the design of the Act; Congress provided no other *445 way to implement the Board's 10 (k) decision." (Footnote omitted.) But we do not think that such practical consequences alone make the 10 (k) proceeding related to the 8 (b) (4) (D) proceeding in a manner that would make the former "agency process" for the formulation of the order in the latter. The prototype of an intermediate proceeding that is "agency process for the formulation of an order," is a hearing before an administrative law judge who makes findings of fact and conclusions of law, initially decides the case, and whose recommended decision "becomes the decision of the agency unless there is an appeal to, or review on motion of, the agency." 5 U.S. C. 557 (b). All of the parties to this case, for instance, agree that the 8 (b) (4) (D) unfair labor practice hearing before the trial examiner (now administrative law judge) was subject to 554 since it was "agency process for the formulation of an order." The relationship between the 10 (k) proceeding and the 8 (b) (4) (D) proceeding, however, is quite distinct from the relationship between the hearing before an administrative law judge and ultimate review of his findings and recommendations by the agency. The 10 (k) proceeding has a life of its own from the time that testimony is taken in the field by a hearing officer until the time the Board, with the record of the testimony before it but with no proposed findings or conclusions or recommendations from the hearing officer, reaches its own determination. The Board's attention in the 10 (k) proceeding is not directed to ascertaining whether there is substantial evidence to show that a union has engaged in forbidden conduct with a forbidden objective. Those inquiries are left for the 8 (b) (4) (D) proceeding.[16]*446 Indeed, the Board's 10 (k) determination is not unlike an advisory opinion, since the matter may well end there. If the Board determines that employees of the charged union are entitled to the work, the 8 (b) (4) (D) charge against it will be dismissed. 29 CFR 102.91. If the Board determination is adverse to the charged union and the union accedes, the 8 (b) (4) (D) charge will be dismissed and the General Counsel will not issue a complaint. Only if the union indicates that it will not comply with the Board's determination are further proceedings necessitated, and those proceedings will be under 8 (b) (4) (D), not 10 (k). As this Court observed in Plasterers' 404 U. S., at 2 n. 10: "The 10 (k) determination is not binding as such even on the striking union. If that union continues to picket despite an adverse 10 (k) decision, the Board must prove the union guilty of a 8 (b) (4) (D) violation before a cease-and-desist order can issue. The findings and conclusions in a 10 (k) proceeding are not res judicata on the unfair labor practice issue in the later 8 (b) (4) (D) determination. International Typographical 5 N. L. R. B. 759, 761 (1959). Both parties may put *447 in new evidence at the 8 (b) (4) (D) stage, although often, as in the present cases, the parties agree to stipulate the record of the 10 (k) hearing as a basis for the Board's determination of the unfair labor practice. Finally, to exercise its powers under 10 (k), the Board need only find that there is reasonable cause to believe that a 8 (b) (4) (D) violation has occurred, while in the 8 (b) (4) (D) proceeding itself the Board must find by a preponderance of the evidence that the picketing union has violated 8 (b) (4) (D). International Typographical at 761 n. 5 (1959)." In each case it is the agency itself, the National Labor Relations Board, which makes the ultimate determination. The same issues will generally be relevant, the record of the earlier proceeding will be admitted in the later one. 29 CFR 102.92, and the Board's ruling on the merits of those issues which are common to the two proceedings is likely to be the same in the one as in the other. But the proceedings are nonetheless separate; the same tribunal finally determines each of them. Were we to adopt respondent's position that merely because a 10 (k) determination has a significant practical effect on the 8 (b) (4) (D) proceeding, it was therefore "agency process for the formulation" of the 8 (b) (4) (D) order, we might well sweep under the definition of that term numerous ancillary agency proceedings that are distinct from the adjudications on which they have an effect, and which the language of the Act does not appear to have been designed to reach. We therefore decline to adopt that position. We accordingly conclude that a 10 (k) determination is neither itself a final disposition under the definitional section of the Act, nor is it "agency process for the formulation of an order" within the meaning of that section. Proceedings under *448 10 (k) are therefore not governed by the Act, 5 U.S. C. 554. Although the Board's 10 (k) proceedings need not be conducted pursuant to the Act, 5 U.S. C. 554, the agency remains "free under the Act to accord litigants appearing before it more procedural rights than the Act requires," Florida East Coast R. 410 U. S., at[17] The Board's procedures are, of course, constrained by the Due Process Clause of the Fifth Amendment, but respondent has raised no contention that attorney Schulson's participation in both proceedings approached a constitutional violation.[18] The judgment is reversed and the case is remanded for further proceedings consistent with this opinion. It is so ordered. |
Justice Thomas | dissenting | false | McFarland v. Scott | 1994-06-30T00:00:00 | null | https://www.courtlistener.com/opinion/117873/mcfarland-v-scott/ | https://www.courtlistener.com/api/rest/v3/clusters/117873/ | 1,994 | 1993-093 | 2 | 5 | 4 | Today the Court holds that a state prisoner under sentence of death may invoke a federal district court's jurisdiction to obtain appointed counsel under 21 U.S. C. § 848(q) (4)(B) and to obtain a stay of execution under 28 U.S. C. § 2251 simply by filing a motion for appointment of counsel. In my view, the Court's conclusion is at odds with the terms of both statutory provisions. Each statute allows a federal district court to take action (appointing counsel under § 848(q)(4)(B) or granting a stay under § 2251) only after a habeas proceeding has been commenced. As Justice O'Connor points out, such a proceeding is initiated under the habeas corpus statute, 28 U.S. C. § 2241 et seq., only with the filing of an application for a writ of habeas corpus. I therefore agree with Justice O'Connor that a district court lacks jurisdiction to grant a stay under § 2251 until such an application has been filed. See ante, at 860-863 (concurring in judgment in part and dissenting in part). But because § 848(q)(4)(B), like § 2251, conditions a court's power to act upon the existence of a habeas proceeding, I would also hold that a district court cannot appoint counsel until an application for habeas relief has been filed. I therefore respectfully dissent.
I
In its attempt to discern Congress' intent regarding the point at which § 848(q)(4)(B) makes counsel available, the Court spends a good deal of time considering how, as a "practical matter," the provision of counsel can be made meaningful. *865 See ante, at 855. See also ante, at 860 (O'Connor, J., concurring in judgment in part and dissenting in part). But here, as in any case of statutory interpretation, our primary guide to Congress' intent should be the text of the statute. The relevant terms of § 848(q)(4)(B) state that an indigent prisoner shall be entitled to an attorney and "investigative, expert, or other reasonably necessary services" only "[i]n any post conviction proceeding under section 2254 . . . seeking to vacate or set aside a death sentence." The clear import of the provision is that an indigent prisoner is not entitled to an attorney or to other services under the section until a "post conviction proceeding under section 2254" existsthat is, not until after such a proceeding has been commenced in district court.
The Court appears to acknowledge that a § 2254 proceeding must be initiated before counsel can be appointed under § 848(q)(4)(B), but asserts that "[n]either the federal habeas corpus statute . . . nor the rules governing habeas corpus proceedings define a `post conviction proceeding' under § 2254 . . . or expressly state how such a proceeding shall be commenced." Ante, at 854. It is difficult to imagine, however, how the federal habeas statute could be more "express" on the matter. As Justice O'Connor explains in detail, the statute makes clear that a "proceeding" is commenced only with the filing of an application for a writ of habeas corpus. See ante, at 862-863 (concurring in judgment in part and dissenting in part).[1] Section 2254(d), for example, provides that the well-known presumption of correctness of state court findings of fact attaches "[i]n any proceeding instituted *866 in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court." 28 U.S. C. § 2254(d) (emphasis added). See also § 2241(d) (power to grant the writ is not triggered except by "application for a writ of habeas corpus"). Cf. § 1914 (equating the filing of an "application for a writ of habeas corpus" with the "instituting" of a "proceeding" for purposes of setting filing fees).[2]
By providing that death-sentenced prisoners may obtain counsel "[i]n any post conviction proceeding under section 2254," Congress referred to a well-known form of action with established contours. We should therefore assume that Congress intended to incorporate into § 848(q)(4)(B) the settled understanding of what constitutes a "proceeding under section 2254" in the habeas statute. Cf. Miles v. Apex Marine Corp., 498 U.S. 19, 32 (1990). Indeed, the similarity between the language in §§ 848(q)(4)(B) and 2254(d) suggests that Congress used the phrase "[i]n any post conviction proceeding under section 2254" in the former provision as a shorthand form of the language "[i]n any proceeding instituted in a Federal court by an application for a writ of habeas corpus" contained in the latter. In short, the terms of § 848(q)(4)(B) indicate that Congress intended that legal assistance be made available under the provision only after a habeas proceeding has been commenced by the filing of an application for habeas relief.
*867 The Court rejects this interpretation. Rather than turning to the habeas statute for guidance in determining when a "proceeding under section 2254" commences, the Court bases its examination of the question primarily on what it perceives to be the time at which legal assistance would be most useful to a death-sentenced prisoner. See ante, at 855-856. From this analysis, the Court concludes that a "`post conviction proceeding' within the meaning of § 848(q)(4)(B) is commenced by the filing of a death row defendant's [preapplication] motion requesting the appointment of counsel." Ante, at 856. The only textual provision the Court cites in support of that conclusion is 21 U.S. C. § 848(q)(9), which states:
"Upon a finding in ex parte proceedings that investigative, expert or other services are reasonably necessary for the representation of the defendant, whether in connection with issues relating to guilt or sentence, the court shall authorize the defendant's attorneys to obtain such services on behalf of the defendant and shall order the payment of fees and expenses therefore . . . ."
At bottom, the Court's textual argument amounts to the following: because investigative, expert, and other services described in § 848(q)(9) "may be critical in the preapplication phase of a habeas corpus proceeding," ante, at 855, and because § 848(q)(9) provides that those services are to be obtained by the defendant's attorneys, an attorney must be appointed "before the need for such technical assistance arises"that is, prior to the filing of an application for habeas relief. Ibid. Thus, the sole textual source upon which the Court relies is the statement that "the defendant's attorneys" are "authorize[d]" to obtain services on the defendant's behalf.
In my view, such an oblique reference to "the defendant's attorneys" is a remarkably thin reed upon which to rest Congress' supposed intention to "establis[h] a right to preapplication legal assistance for capital defendants in federal *868 habeas corpus proceedings." Ibid. Indeed, had Congress intended to establish such a "right," it surely would have done so in § 848(q)(4)(B), which provides for appointment of counsel, rather than in § 848(q)(9), which sets forth the mechanics of how "investigative, expert or other services" are to be obtained.
Moreover, § 848(q)(9) simply does not address the issue of when "investigative, expert or other services" are to be made available to a death-sentenced prisoner. The Court asserts that such services "may be critical" in the preapplication period. Ibid. Yet the issue of when these services are to be available, like the question of when a prisoner is entitled to counsel, is expressly addressed not in § 848(q)(9), but in § 848(q)(4). See § 848(q)(4)(A) (indigent defendant "charged with a [federal] crime which may be punishable by death" may obtain "representation [and] investigative, expert, or other reasonably necessary services" both "before judgment" and "after the entry of a judgment imposing a sentence of death but before the execution of that judgment"); see also § 848(q)(4)(B) (indigent prisoner "seeking to vacate or set aside [his] death sentence" may obtain "representation [and] investigative, expert, or other reasonably necessary services" "[i]n any post conviction proceeding under section 2254 or 2255"). And for purposes of this case, § 848(q)(4)(B) resolves the issue: Such services are to be made available only after a "post conviction proceeding under 2254" has been commenced.
As for the policy concerns rehearsed by the Court, I agree that legal assistance prior to the filing of a federal habeas petition can be very valuable to a prisoner. See ante, at 855-856. That such assistance is valuable, however, does not compel the conclusion that Congress intended the Federal Government to pay for it under § 848(q). As the Ninth Circuit has aptly observed: "Section 848(q) is a funding statute. It provides for the appointment of attorneys and the furnishing of investigative services for [federal] defendants or habeas corpus petitioners seeking to vacate or set aside a *869 death sentence." Jackson v. Vasquez, 1 F.3d 885, 888 (1993) (emphasis added). It might well be a wise and generous policy for the Government to provide prisoners appointed counsel prior to the filing of a habeas petition, but that is not a policy declared by Congress in the terms of § 848(q)(4)(B).
Implicit in the Court's analysis is the assumption that it would be unthinkable for Congress to grant an entitlement to appointed counsel, but to have that entitlement attach only upon the filing of a habeas petition. The Court suggests that its interpretation is required because it is "the only one that gives meaning to the statute as a practical matter." Ante, at 855 (emphasis added). Any other interpretation, according to the Court, would "requir[e] an indigent capital petitioner to proceed without counsel in order to obtain counsel." Ante, at 856. Yet under the interpretation of § 848(q)(4)(B) I have outlined above, Congress has not required death-sentenced prisoners to proceed without counsel during the preapplication period; rather, it has merely concluded that such prisoners would proceed without counsel funded under § 848(q)(4)(B).
Moreover, leaving prisoners without counsel appointed under § 848(q)(4)(B) during the preapplication period would be fully reasonable. Congress was no doubt aware that alternative sources of funding for preapplication legal assistance exist for death-sentenced prisoners. Petitioner, for example, is represented by the Texas Resource Center, which has been "designated . . . a Community Defender Organization in accordance with 18 U.S. C. § 3006A for the purpose of providing representation, assistance, information, and other related services to eligible persons and appointed attorneys in connection with" federal habeas corpus cases arising from capital convictions. Brief for Petitioner 4, n. 3 (internal quotation marks and citation omitted). The center, which is "funded primarily by a grant from the Administrative Office of the United States Courts," id. , at 5, n. 4, became involved in petitioner's case soon after his conviction was affirmed *870 by the Texas Court of Criminal Appeals. Thus, although petitioner did not have preapplication assistance of counsel made available to him under § 848(q)(4)(B), he still could benefit from federally funded legal assistance.
In addition, it seems likely that Congress expected that the States would also shoulder some of the burden of providing preapplication legal assistance to indigent death-sentenced prisoners. Cf. Hill v. Lockhart, 992 F.2d 801, 803 (CA8 1993) ("A state that has elected to impose the death penalty should provide adequate funding for the procedures it has adopted to properly implement that penalty"). Defendants under a state-imposed sentence of death must exhaust state remedies by presenting their claims in state court prior to coming to federal court. See 28 U.S. C. § 2254(b). See also Coleman v. Thompson, 501 U.S. 722 (1991). Given this exhaustion requirement, it would have been logical for Congress, in drafting § 848(q)(4)(B), to assume that by the time a death-sentenced prisoner reaches federal court, "possible claims and their factual bases" will already have been "researched and identified." Ante, at 855. Indeed, if the claims have not been identified and presented to state courts, a prisoner cannot proceed on federal habeas. See Coleman, supra, at 731 ("This Court has long held that a state prisoner's federal habeas petition should be dismissed if the prisoner has not exhausted available state remedies as to any of his federal claims"). Thus, it would not have been unreasonable for Congress to require prisoners to meet the ordinary requirement for invoking a federal court's habeas jurisdictionnamely, the filing of an adequate application for habeas corpus reliefprior to obtaining an attorney under § 848(q)(4)(B).
II
Had the Court ended its analysis with the ruling that an indigent death-sentenced prisoner is entitled to counsel under § 848(q)(4)(B) prior to filing an application for habeas relief, today's decision would have an impact on federal coffers, but would not expand the power of the federal courts *871 to interfere with States' legitimate interests in enforcing the judgments of their criminal justice systems. The Court, however, does not stop with its decision on availability of counsel; rather, it goes on to hold that upon a motion for appointment of counsel, a death-sentenced prisoner is also able to obtain a stay of his execution in order to permit counsel "to research and present [his] habeas claims." Ante, at 858.
The Court reaches its decision through the sheerest form of bootstrapping. After reasoning that "a proceeding under section 2254" for purposes of § 848(q)(4)(B) commences with the filing of a motion for appointment of counsel, the Court imports that meaning of "proceeding" into 28 U.S. C. § 2251, which provides that a federal judge "before whom a habeas corpus proceeding is pending " may "stay any proceeding against the person detained in any State court" (emphasis added). The Court thus concludes that "once a capital defendant invokes his right to appointed counsel, a federal court also has jurisdiction under § 2251 to enter a stay of execution." Ante, at 858. I agree with the Court that the "language of [§§ 848(q)(4)(B) and 2251] indicates that the sections refer to the same proceeding." Ibid. But the method the Court employs to impart meaning to the term "proceeding" in the two provisions is simply backwards. Section 848(q)(4)(B) was enacted as part of the Anti-Drug Abuse Act of 1988, Pub. L. 100-690, 102 Stat. 4393, long after the enactment of the habeas statute. As noted above, in using the terms "post conviction proceeding under section 2254" in § 848(q)(4)(B), Congress was referring to a form of action whose contours were well established under the habeas statute. As a matter of basic statutory construction, then, we should look to the habeas statute to inform our construction of § 848(q)(4)(B), not vice versa.
The reason the Court pursues a different approach is clear: There is no basis in the habeas statute for reading "habeas corpus proceeding" in § 2251 to mean an action commenced *872 by the filing of a motion for appointment of counsel. Thus, to avoid the conclusion that a "proceeding" in § 2251 is commenced by the filing of an application for habeas relief, the Court is forced to hold that by enacting § 848(q), Congress amended the habeas statute sub silentio. Cf. ante, at 863 (O'Connor, J., concurring in judgment in part and dissenting in part).[3] In effect, the Court determines that Congress, in providing death-sentenced prisoners with federally funded counsel in § 848(q)(4)(B), intended to expand the jurisdiction of the federal courts to stay state proceedings under the habeas statute. Yet § 848(q)(4)(B) in no way suggests a connection between the availability of counsel and the stay power; indeed, the provision does not even mention the term "stay." A proper interpretation of the provisions at issue here, however, avoids the dubious assumption that Congress intended to effect such an amendment of the habeas statute by implication. Correctly interpreted, both §§ 848(q)(4)(B) and 2251 refer to a "proceeding" that begins with the filing of an application for habeas relief, after which a federal court has jurisdiction to enter a stay and to appoint counsel.
In reaching its expansive interpretation of § 2251, the Court ignores the fact that the habeas statute provides federal courts with exceptional powers. Federal habeas review "disturbs the State's significant interest in repose for concluded litigation, 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." *873 Duckworth v. Eagan, 492 U.S. 195, 210 (1989) (O'Connor, J., concurring) (internal quotation marks and citation omitted). See also ante, at 863 (O'Connor, J., concurring in judgment in part and dissenting in part). We should not lightly assume that Congress intended to expand federal courts' habeas power; this is particularly true regarding their power directly to interfere with state proceedings through granting stays.
Moreover, as Justice O'Connor observes, in expanding the federal courts' power to grant stays, the Court's decision "conflicts with the sound principle underlying our precedents that federal habeas review exists only to review errors of constitutional dimension." Ante, at 861 (concurring in judgment in part and dissenting in part). Under the Court's interpretation of § 2251, a prisoner may obtain a stay of execution without presenting a single claim to a federal court. Indeed, under the Court's reading of the statute, a federal district court determining whether to enter a stay will no longer have to evaluate whether a prisoner has presented a potentially meritorious constitutional claim. Rather, the court's task will be to determine whether a "capital defendant" who comes to federal court shortly before his scheduled execution has been "dilatory" in pursuing his "right to counsel." Ante, at 858. If he has not been "dilatory," the district court presumably must enter a stay to preserve his "right to counsel" and his "right for that counsel meaningfully to research and present [his] habeas claims." Ibid. In my view, simply by providing for the appointment of counsel in habeas cases, Congress did not intend to achieve such an extraordinary result.
* * *
Because petitioner had not filed an application for habeas relief prior to filing his motion for stay of execution and for appointment of counsel, the courts below correctly determined that they lacked jurisdiction to consider his motion. I respectfully dissent.
| Today the Court holds that a state prisoner under sentence of death may invoke a federal district court's jurisdiction to obtain appointed counsel under 21 U.S. C. 848(q) (4)(B) and to obtain a stay of execution under 28 U.S. C. 2251 simply by filing a motion for appointment of counsel. In my view, the Court's conclusion is at odds with the terms of both statutory provisions. Each statute allows a federal district court to take action (appointing counsel under 848(q)(4)(B) or granting a stay under 2251) only after a habeas proceeding has been commenced. As Justice O'Connor points out, such a proceeding is initiated under the habeas corpus statute, 28 U.S. C. 2241 et seq., only with the filing of an application for a writ of habeas corpus. I therefore agree with Justice O'Connor that a district court lacks jurisdiction to grant a stay under 2251 until such an application has been filed. See ante, at 860-863 (concurring in judgment in part and dissenting in part). But because 848(q)(4)(B), like 2251, conditions a court's power to act upon the existence of a habeas proceeding, I would also hold that a district court cannot appoint counsel until an application for habeas relief has been filed. I therefore respectfully dissent. I In its attempt to discern Congress' intent regarding the point at which 848(q)(4)(B) makes counsel available, the Court spends a good deal of time considering how, as a "practical matter," the provision of counsel can be made meaningful. *865 See ante, at 855. See also ante, at 860 (O'Connor, J., concurring in judgment in part and dissenting in part). But here, as in any case of statutory interpretation, our primary guide to Congress' intent should be the text of the statute. The relevant terms of 848(q)(4)(B) state that an indigent prisoner shall be entitled to an attorney and "investigative, expert, or other reasonably necessary services" only "[i]n any post conviction proceeding under section 2254 seeking to vacate or set aside a death sentence." The clear import of the provision is that an indigent prisoner is not entitled to an attorney or to other services under the section until a "post conviction proceeding under section 2254" existsthat is, not until after such a proceeding has been commenced in district court. The Court appears to acknowledge that a 2254 proceeding must be initiated before counsel can be appointed under 848(q)(4)(B), but asserts that "[n]either the federal habeas corpus statute nor the rules governing habeas corpus proceedings define a `post conviction proceeding' under 2254 or expressly state how such a proceeding shall be commenced." Ante, at 854. It is difficult to imagine, however, how the federal habeas statute could be more "express" on the matter. As Justice O'Connor explains in detail, the statute makes clear that a "proceeding" is commenced only with the filing of an application for a writ of habeas corpus. See ante, at 862-863 (concurring in judgment in part and dissenting in part).[1] Section 2254(d), for example, provides that the well-known presumption of correctness of state court findings of fact attaches "[i]n any proceeding instituted *866 in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court." 28 U.S. C. 2254(d) See also 2241(d) (power to grant the writ is not triggered except by "application for a writ of habeas corpus"). Cf. 1914 (equating the filing of an "application for a writ of habeas corpus" with the "instituting" of a "proceeding" for purposes of setting filing fees).[2] By providing that death-sentenced prisoners may obtain counsel "[i]n any post conviction proceeding under section 2254," Congress referred to a well-known form of action with established contours. We should therefore assume that Congress intended to incorporate into 848(q)(4)(B) the settled understanding of what constitutes a "proceeding under section 2254" in the habeas statute. Cf. Indeed, the similarity between the language in 848(q)(4)(B) and 2254(d) suggests that Congress used the phrase "[i]n any post conviction proceeding under section 2254" in the former provision as a shorthand form of the language "[i]n any proceeding instituted in a Federal court by an application for a writ of habeas corpus" contained in the latter. In short, the terms of 848(q)(4)(B) indicate that Congress intended that legal assistance be made available under the provision only after a habeas proceeding has been commenced by the filing of an application for habeas relief. *867 The Court rejects this interpretation. Rather than turning to the habeas statute for guidance in determining when a "proceeding under section 2254" commences, the Court bases its examination of the question primarily on what it perceives to be the time at which legal assistance would be most useful to a death-sentenced prisoner. See ante, at 855-856. From this analysis, the Court concludes that a "`post conviction proceeding' within the meaning of 848(q)(4)(B) is commenced by the filing of a death row defendant's [preapplication] motion requesting the appointment of counsel." Ante, at 856. The only textual provision the Court cites in support of that conclusion is 21 U.S. C. 848(q)(9), which states: "Upon a finding in ex parte proceedings that investigative, expert or other services are reasonably necessary for the representation of the defendant, whether in connection with issues relating to guilt or sentence, the court shall authorize the defendant's attorneys to obtain such services on behalf of the defendant and shall order the payment of fees and expenses therefore" At bottom, the Court's textual argument amounts to the following: because investigative, expert, and other services described in 848(q)(9) "may be critical in the preapplication phase of a habeas corpus proceeding," ante, at 855, and because 848(q)(9) provides that those services are to be obtained by the defendant's attorneys, an attorney must be appointed "before the need for such technical assistance arises"that is, prior to the filing of an application for habeas relief. Thus, the sole textual source upon which the Court relies is the statement that "the defendant's attorneys" are "authorize[d]" to obtain services on the defendant's behalf. In my view, such an oblique reference to "the defendant's attorneys" is a remarkably thin reed upon which to rest Congress' supposed intention to "establis[h] a right to preapplication legal assistance for capital defendants in federal *868 habeas corpus proceedings." Indeed, had Congress intended to establish such a "right," it surely would have done so in 848(q)(4)(B), which provides for appointment of counsel, rather than in 848(q)(9), which sets forth the mechanics of how "investigative, expert or other services" are to be obtained. Moreover, 848(q)(9) simply does not address the issue of when "investigative, expert or other services" are to be made available to a death-sentenced prisoner. The Court asserts that such services "may be critical" in the preapplication period. Yet the issue of when these services are to be available, like the question of when a prisoner is entitled to counsel, is expressly addressed not in 848(q)(9), but in 848(q)(4). See 848(q)(4)(A) (indigent defendant "charged with a [federal] crime which may be punishable by death" may obtain "representation [and] investigative, expert, or other reasonably necessary services" both "before judgment" and "after the entry of a judgment imposing a sentence of death but before the execution of that judgment"); see also 848(q)(4)(B) (indigent prisoner "seeking to vacate or set aside [his] death sentence" may obtain "representation [and] investigative, expert, or other reasonably necessary services" "[i]n any post conviction proceeding under section 2254 or 2255"). And for purposes of this case, 848(q)(4)(B) resolves the issue: Such services are to be made available only after a "post conviction proceeding under 2254" has been commenced. As for the policy concerns rehearsed by the Court, I agree that legal assistance prior to the filing of a federal habeas petition can be very valuable to a prisoner. See ante, at 855-856. That such assistance is valuable, however, does not compel the conclusion that Congress intended the Federal Government to pay for it under 848(q). As the Ninth Circuit has aptly observed: "Section 848(q) is a funding statute. It provides for the appointment of attorneys and the furnishing of investigative services for [federal] defendants or habeas corpus petitioners seeking to vacate or set aside a *869 death sentence." It might well be a wise and generous policy for the Government to provide prisoners appointed counsel prior to the filing of a habeas petition, but that is not a policy declared by Congress in the terms of 848(q)(4)(B). Implicit in the Court's analysis is the assumption that it would be unthinkable for Congress to grant an entitlement to appointed counsel, but to have that entitlement attach only upon the filing of a habeas petition. The Court suggests that its interpretation is required because it is "the only one that gives meaning to the statute as a practical matter." Ante, at 855 Any other interpretation, according to the Court, would "requir[e] an indigent capital petitioner to proceed without counsel in order to obtain counsel." Ante, at 856. Yet under the interpretation of 848(q)(4)(B) I have outlined above, Congress has not required death-sentenced prisoners to proceed without counsel during the preapplication period; rather, it has merely concluded that such prisoners would proceed without counsel funded under 848(q)(4)(B). Moreover, leaving prisoners without counsel appointed under 848(q)(4)(B) during the preapplication period would be fully reasonable. Congress was no doubt aware that alternative sources of funding for preapplication legal assistance exist for death-sentenced prisoners. Petitioner, for example, is represented by the Texas Resource Center, which has been "designated a Community Defender Organization in accordance with 18 U.S. C. 3006A for the purpose of providing representation, assistance, information, and other related services to eligible persons and appointed attorneys in connection with" federal habeas corpus cases arising from capital convictions. Brief for Petitioner 4, n. 3 (internal quotation marks and citation omitted). The center, which is "funded primarily by a grant from the Administrative Office of the United States Courts," at 5, n. 4, became involved in petitioner's case soon after his conviction was affirmed *870 by the Texas Court of Criminal Appeals. Thus, although petitioner did not have preapplication assistance of counsel made available to him under 848(q)(4)(B), he still could benefit from federally funded legal assistance. In addition, it seems likely that Congress expected that the States would also shoulder some of the burden of providing preapplication legal assistance to indigent death-sentenced prisoners. Cf. Defendants under a state-imposed sentence of death must exhaust state remedies by presenting their claims in state court prior to coming to federal court. See 28 U.S. C. 2254(b). See also Given this exhaustion requirement, it would have been logical for Congress, in drafting 848(q)(4)(B), to assume that by the time a death-sentenced prisoner reaches federal court, "possible claims and their factual bases" will already have been "researched and identified." Ante, at 855. Indeed, if the claims have not been identified and presented to state courts, a prisoner cannot proceed on federal habeas. See ("This Court has long held that a state prisoner's federal habeas petition should be dismissed if the prisoner has not exhausted available state remedies as to any of his federal claims"). Thus, it would not have been unreasonable for Congress to require prisoners to meet the ordinary requirement for invoking a federal court's habeas jurisdictionnamely, the filing of an adequate application for habeas corpus reliefprior to obtaining an attorney under 848(q)(4)(B). II Had the Court ended its analysis with the ruling that an indigent death-sentenced prisoner is entitled to counsel under 848(q)(4)(B) prior to filing an application for habeas relief, today's decision would have an impact on federal coffers, but would not expand the power of the federal courts *871 to interfere with States' legitimate interests in enforcing the judgments of their criminal justice systems. The Court, however, does not stop with its decision on availability of counsel; rather, it goes on to hold that upon a motion for appointment of counsel, a death-sentenced prisoner is also able to obtain a stay of his execution in order to permit counsel "to research and present [his] habeas claims." Ante, at 858. The Court reaches its decision through the sheerest form of bootstrapping. After reasoning that "a proceeding under section 2254" for purposes of 848(q)(4)(B) commences with the filing of a motion for appointment of counsel, the Court imports that meaning of "proceeding" into 28 U.S. C. 2251, which provides that a federal judge "before whom a habeas corpus proceeding is pending " may "stay any proceeding against the person detained in any State court" The Court thus concludes that "once a capital defendant invokes his right to appointed counsel, a federal court also has jurisdiction under 2251 to enter a stay of execution." Ante, at 858. I agree with the Court that the "language of [ 848(q)(4)(B) and 2251] indicates that the sections refer to the same proceeding." But the method the Court employs to impart meaning to the term "proceeding" in the two provisions is simply backwards. Section 848(q)(4)(B) was enacted as part of the Anti-Drug Abuse Act of 1988, Stat. 4393, long after the enactment of the habeas statute. As noted above, in using the terms "post conviction proceeding under section 2254" in 848(q)(4)(B), Congress was referring to a form of action whose contours were well established under the habeas statute. As a matter of basic statutory construction, then, we should look to the habeas statute to inform our construction of 848(q)(4)(B), not vice versa. The reason the Court pursues a different approach is clear: There is no basis in the habeas statute for reading "habeas corpus proceeding" in 2251 to mean an action commenced *872 by the filing of a motion for appointment of counsel. Thus, to avoid the conclusion that a "proceeding" in 2251 is commenced by the filing of an application for habeas relief, the Court is forced to hold that by enacting 848(q), Congress amended the habeas statute sub silentio. Cf. ante, at 863 (O'Connor, J., concurring in judgment in part and dissenting in part).[3] In effect, the Court determines that Congress, in providing death-sentenced prisoners with federally funded counsel in 848(q)(4)(B), intended to expand the jurisdiction of the federal courts to stay state proceedings under the habeas statute. Yet 848(q)(4)(B) in no way suggests a connection between the availability of counsel and the stay power; indeed, the provision does not even mention the term "stay." A proper interpretation of the provisions at issue here, however, avoids the dubious assumption that Congress intended to effect such an amendment of the habeas statute by implication. Correctly interpreted, both 848(q)(4)(B) and 2251 refer to a "proceeding" that begins with the filing of an application for habeas relief, after which a federal court has jurisdiction to enter a stay and to appoint counsel. In reaching its expansive interpretation of 2251, the Court ignores the fact that the habeas statute provides federal courts with exceptional powers. Federal habeas review "disturbs the State's significant interest in repose for concluded litigation, 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." *873 (internal quotation marks and citation omitted). See also ante, at 863 (O'Connor, J., concurring in judgment in part and dissenting in part). We should not lightly assume that Congress intended to expand federal courts' habeas power; this is particularly true regarding their power directly to interfere with state proceedings through granting stays. Moreover, as Justice O'Connor observes, in expanding the federal courts' power to grant stays, the Court's decision "conflicts with the sound principle underlying our precedents that federal habeas review exists only to review errors of constitutional dimension." Ante, at 861 (concurring in judgment in part and dissenting in part). Under the Court's interpretation of 2251, a prisoner may obtain a stay of execution without presenting a single claim to a federal court. Indeed, under the Court's reading of the statute, a federal district court determining whether to enter a stay will no longer have to evaluate whether a prisoner has presented a potentially meritorious constitutional claim. Rather, the court's task will be to determine whether a "capital defendant" who comes to federal court shortly before his scheduled execution has been "dilatory" in pursuing his "right to counsel." Ante, at 858. If he has not been "dilatory," the district court presumably must enter a stay to preserve his "right to counsel" and his "right for that counsel meaningfully to research and present [his] habeas claims." In my view, simply by providing for the appointment of counsel in habeas cases, Congress did not intend to achieve such an extraordinary result. * * * Because petitioner had not filed an application for habeas relief prior to filing his motion for stay of execution and for appointment of counsel, the courts below correctly determined that they lacked jurisdiction to consider his motion. I respectfully dissent. |
Justice Stevens | concurring | false | Inyo County, California v. Paiute-Shoshone Indians of the Bishop Community of the Bishop Colony | 2003-05-19T00:00:00 | 538 U.S. 1 | https://www.courtlistener.com/opinion/127887/inyo-county-california-v-paiute-shoshone-indians-of-the-bishop-community/ | https://www.courtlistener.com/api/rest/v3/clusters/127887/ | 2,003 | null | null | null | null | 23
In my judgment a Native American tribe is a "person" who may sue under 42 U.S. C. §1983. The Tribe's complaint, however, does not state a cause of action under §1983 because the county's alleged infringement of the Tribe's sovereign prerogatives did not deprive the Tribe of "rights, privileges, or immunities secured by the Constitution and laws" within the meaning of §1983. At bottom, rather than relying on an Act of Congress or a provision of the Constitution, the Tribe's complaint rests on the judgemade doctrine of tribal immunity—a doctrine that "developed almost by accident." Kiowa Tribe of Okla. v. Manufacturing Technologies, Inc., 523 U.S. 751, 756 (1998). Because many applications of that doctrine are both anomalous and unjust, see id., at 760, 764-766 (STEVENS, J., dissenting), I would not accord it the same status as the "laws" referenced in §1983.
24
It is demeaning to Native American tribes to deny them the same access to a §1983 remedy that is available to any other person whose constitutional rights are violated by persons acting under color of state law. The text of §1983—which provides that §1983 defendants are "person[s] who, under color of [State law]" subject any "other person" to a deprivation of a federal right—adequately explains why a tribe is not a person subject to suit under §1983. For tribes generally do not act under color of state law. But that text sheds no light on the question whether the tribe is an "other person" who may bring a §1983 suit when the tribe is the victim of a constitutional violation. The ordinary meaning of the word "person" as used in federal statutes,1 as well as the specific remedial purpose of §1983, support the conclusion that a tribe should be able to invoke the protections of the statute if its constitutional rights are violated.2
25
In this case, however, the Tribe's allegations do not state a cause of action under §1983. The execution of the warrant challenged in this case would unquestionably have been lawful if the casino had been the property of an ordinary commercial corporation. See ante, at 9 ("There is in this case no allegation that the County lacked probable cause or that the warrant was otherwise defective"). Thus, the Tribe rests its case entirely on its claim that, as a sovereign, it should be accorded a special immunity that private casinos do not enjoy. See ibid. That sort of claim to special privileges, which is based entirely on the Tribe's sovereign status, is not one for which the §1983 remedy was enacted.
26
Accordingly, while I agree with the Court that the judgment should be set aside, I do not join the Court's opinion.
Notes:
1
The Dictionary Act, which was passed just two months before §1983 and was designed to supply rules of construction for all legislation, provided that "the word `person' may extend and be applied to bodies politic and corporate...." Act of Feb. 25, 1871, §2, 16 Stat. 431
2
Our holding inWill v. Michigan Dept. of State Police, 491 U.S. 58, 65 (1989), that a State is not a "person" within §1983 is fully consistent with this view. Will rested on "the ordinary rule of statutory construction that if Congress intends to alter the `usual constitutional balance between the States and the Federal Government,' it must make its intention to do so `unmistakably clear in the language of the statute.' Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242 (1985); see also Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 99 (1984)." Ibid | 23 In my judgment a Native American tribe is a "person" who may sue under 42 U.S. C. The Tribe's complaint, however, does not state a cause of action under because the county's alleged infringement of the Tribe's sovereign prerogatives did not deprive the Tribe of "rights, privileges, or immunities secured by the Constitution and laws" within the meaning of At bottom, rather than relying on an Act of Congress or a provision of the Constitution, the Tribe's complaint rests on the judgemade doctrine of tribal immunity—a doctrine that "developed almost by accident." Kiowa Tribe of Because many applications of that doctrine are both anomalous and unjust, see I would not accord it the same status as the "laws" referenced in 24 It is demeaning to Native American tribes to deny them the same access to a remedy that is available to any other person whose constitutional rights are violated by persons acting under color of state law. The text of —which provides that defendants are "person[s] who, under color of [State law]" subject any "other person" to a deprivation of a federal right—adequately explains why a tribe is not a person subject to suit under For tribes generally do not act under color of state law. But that text sheds no light on the question whether the tribe is an "other person" who may bring a suit when the tribe is the victim of a constitutional violation. The ordinary meaning of the word "person" as used in federal statutes,1 as well as the specific remedial purpose of support the conclusion that a tribe should be able to invoke the protections of the statute if its constitutional rights are violated.2 25 In this case, however, the Tribe's allegations do not state a cause of action under The execution of the warrant challenged in this case would unquestionably have been lawful if the casino had been the property of an ordinary commercial corporation. See ante, at 9 ("There is in this case no allegation that the County lacked probable cause or that the warrant was otherwise defective"). Thus, the Tribe rests its case entirely on its claim that, as a sovereign, it should be accorded a special immunity that private casinos do not enjoy. See That sort of claim to special privileges, which is based entirely on the Tribe's sovereign status, is not one for which the remedy was enacted. 26 Accordingly, while I agree with the Court that the judgment should be set aside, I do not join the Court's opinion. Notes: 1 The Dictionary Act, which was passed just two months before and was designed to supply rules of construction for all legislation, provided that "the word `person' may extend and be applied to bodies politic and corporate." Act of Feb. 25, 1871, 2 Our holding that a State is not a "person" within is fully consistent with this view. Will rested on "the ordinary rule of statutory construction that if Congress intends to alter the `usual constitutional balance between the States and the Federal Government,' it must make its intention to do so `unmistakably clear in the language of the statute.' Atascadero State ; see also Pennhurst State School and 4 U.S. 89," Ibid |
Justice Marshall | concurring | false | Satterwhite v. Texas | 1988-05-31T00:00:00 | null | https://www.courtlistener.com/opinion/112080/satterwhite-v-texas/ | https://www.courtlistener.com/api/rest/v3/clusters/112080/ | 1,988 | 1987-092 | 2 | 8 | 0 | I
I agree with the Court that the psychiatric examination on which Dr. Grigson testified at the capital sentencing proceeding was in bald violation of Estelle v. Smith, 451 U.S. 454 *261 (1981), and that petitioner's death sentence should be vacated. I write separately because I believe the Court errs in applying harmless-error analysis to this Sixth Amendment violation. It is my view that the unique nature of a capital sentencing determination should cause this Court to be especially hesitant ever to sanction harmless-error review of constitutional errors that taint capital sentencing proceedings, and even if certain constitutional errors might properly be subject to such harmless-error analysis, a violation of Estelle v. Smith is not such an error.
Until today's ruling, this Court never had applied harmless-error analysis to constitutional violations that taint the sentencing phase of a capital trial. In deciding to apply harmless-error analysis to the Sixth Amendment violation in this case, I believe the Court fails to adequately consider the unique nature of a capital sentencing proceeding and a sentencer's decision whether a defendant should live or die. The Court's analysis is also flawed in that it fails to accord any noticeable weight to the qualitative difference of death from all other punishments.
Unlike the determination of guilt or innocence, which turns largely on an evaluation of objective facts, the question whether death is the appropriate sentence requires a profoundly moral evaluation of the defendant's character and crime. See California v. Brown, 479 U.S. 538, 545 (1987) (O'CONNOR, J., concurring) (a death sentence should "reflect a reasoned moral response to the defendant's background, character, and crime"); Enmund v. Florida, 458 U.S. 782, 801 (1982) (capital defendant's "punishment must be tailored to his personal responsibility and moral guilt"). Moreover, although much of the Court's capital jurisprudence since Furman v. Georgia, 408 U.S. 238 (1972), has been focused on guiding and channeling the decision whether death is the appropriate sentence in a specific case, the sentencer nonetheless is afforded substantial discretion. See, e. g., McCleskey v. Kemp, 481 U.S. 279, 304-306 (1987); Woodson v. *262 North Carolina, 428 U.S. 280 (1976). Even in the face of overwhelming aggravating evidence, the sentencer has discretion to act with leniency and refuse to impose the death sentence. See McCleskey, supra, at 311 ("[D]iscretionary exercises of leniency [by the sentencer] are final and unreviewable").
Because of the moral character of a capital sentencing determination and the substantial discretion placed in the hands of the sentencer, predicting the reaction of a sentencer to a proceeding untainted by constitutional error on the basis of a cold record is a dangerously speculative enterprise. As the Court recognized in Caldwell v. Mississippi, 472 U.S. 320, 330 (1985), "[w]hatever intangibles a jury might consider in its sentencing determination, few can be gleaned from an appellate record." In the same vein, an appellate court is ill equipped to evaluate the effect of a constitutional error on a sentencing determination. Such sentencing judgments, even when guided and channeled, are inherently subjective, and the weight a sentencer gives an instruction or a significant piece of evidence that is later determined to violate a defendant's constitutional rights is nowhere apparent in the record. In McCleskey v. Kemp, supra, the Court acknowledged that "[i]ndividual jurors bring to their deliberations `qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable,' " and their collective judgment of the appropriate sentence is marked by an "inherent lack of predictability." Id., at 311, quoting Peters v. Kiff, 407 U.S. 493, 503 (1972) (opinion of MARSHALL, J.). The threat of an erroneous harmless-error determination thus looms much larger in the capital sentencing context than elsewhere.
That threat is of particular concern because of the unique nature of the death sentence. The awesome severity of a sentence of death makes it qualitatively different from all other sanctions. See, e. g., Lockett v. Ohio, 438 U.S. 586, 605 (1978) (plurality opinion). For this reason, the Court has *263 emphasized the greater need for reliability in capital cases, and has required that "capital proceedings be policed at all stages by an especially vigilant concern for procedural fairness and for the accuracy of factfinding." Strickland v. Washington, 466 U.S. 668, 704 (1984) (BRENNAN, J., concurring in part and dissenting in part); see California v. Ramos, 463 U.S. 992, 998-999 (1983) ("[T]he qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination"). Because of this heightened concern for reliability, "[t]ime and again the Court has condemned procedures in capital cases that might be completely acceptable in an ordinary case." Barefoot v. Estelle, 463 U.S. 880, 913 (1983) (MARSHALL, J., dissenting). Harmless-error analysis impinges directly on the reliability of the capital sentencing decision by allowing a court to substitute its judgment of what the sentencer would have done in the absence of constitutional error for an actual judgment of the sentencer untainted by constitutional error.
I therefore have serious doubts whether a constitutional error that infects the sentencing phase of a capital case ever may be considered harmless beyond a reasonable doubt. But even if I could agree that harmless-error analysis is appropriate for certain constitutional errors at the sentencing phase, such a situation is not presented when the error is a violation of the Sixth Amendment under Estelle v. Smith.
II
As an initial matter, the Court in Estelle v. Smith gave no hint that harmless-error analysis ever could apply to the admission of psychiatric testimony in a capital sentencing proceeding which was based on an examination of the defendant conducted in violation of his Sixth Amendment right to counsel. After finding constitutional error, the Court simply vacated the death sentence. See 451 U.S., at 473. The failure of the Court to engage in harmless-error analysis *264 in Smith is understandable, because the factors on which this Court traditionally has focused to determine whether harmless-error review is appropriate make clear that an Estelle v. Smith violation that taints a capital sentencing proceeding should lead to automatic reversal. First, the potential for actual prejudice resulting from such a violation of Smith is so high that a "case-by-case inquiry into prejudice is not worth the cost." Strickland v. Washington, supra, at 692. As evidenced in this case, psychiatric testimony is generally of critical importance to the sentencing determination, covering issues of rehabilitative potential, future dangerousness, and individual culpability.[1] Moreover, psychiatric testimony on these issues is clothed with a scientific authority that often carries great weight with lay juries. Cf. Ake v. Oklahoma, 470 U.S. 68, 79 (1985) (recognizing "pivotal role" psychiatry has come to play in criminal proceedings).
Second, it is difficult, if not impossible, to accurately measure the degree of prejudice arising from the failure to notify defense counsel of an impending psychiatric examination and the subsequent admission at the sentencing phase of evidence acquired from the examination. Cf. Hamilton v. Alabama, 368 U.S. 52, 55 (1961) (rejecting harmless-error analysis where "the degree of prejudice can never be known"); Holloway v. Arkansas, 435 U.S. 475, 490-491 (1978) ("[A]n inquiry into a claim of harmless error [in a case involving defense counsel's conflict of interests] would require, unlike *265 most cases, unguided speculation"). As I discussed above, the decision whether a defendant should live or die is a discretionary, moral judgment involving a balancing of often intangible factors. Divining the effect of psychiatric testimony on a sentencer's determination whether death is an appropriate sentence is thus more in the province of soothsayers than appellate judges. In addition, contrary to the Court's claim, see ante, at 257, the prejudice arising from an Estelle v. Smith violation is not limited to the illegal admission of psychiatric testimony. If defense counsel is properly notified under Smith of the State's intention to perform a psychiatric examination, the course of subsequent proceedings may be altered significantly. For instance, defense counsel might extensively prepare his client for the examination, or perhaps advise his client to refuse to participate in the examination by the particular psychiatrist; defense counsel also might urge that a different psychiatrist perform the examination. Cf. Estelle v. Smith, 451 U. S., at 471 (defendant "was denied the assistance of his attorneys in making the significant decision of whether to submit to the examination and to what end the psychiatrist's findings could be employed"). I therefore believe that any attempt to predict the effect of such an Estelle v. Smith violation would require the appellate court to engage in unguided speculation. The confluence of these factors the likelihood of prejudice and the difficulty in evaluating the degree of that prejudice together with the heightened concern for reliability in capital cases, convinces me that a psychiatric examination conducted in violation of Estelle v. Smith, and the later admission at a capital sentencing proceeding of psychiatric testimony based on this examination, may never be considered harmless error.[2]
*266 I would have thought that this Court's decision in Holloway v. Arkansas, supra, already had settled the question whether an Estelle v. Smith violation in a capital case can ever be harmless error. In Holloway we stated: " `The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.'. . . Accordingly, when a defendant is deprived of the presence and assistance of his attorney, either throughout the prosecution or during a critical stage in, at least, the prosecution of a capital offense, reversal is automatic." 435 U.S., at 488-489, quoting Glasser v. United States, 315 U.S. 60, 76 (1942). We stated in Estelle v. Smith, supra, that a pretrial examination by a state psychiatrist of a capital defendant is a "critical stage" in a capital case. Id., at 470. As the Court recognized in that case, "the decision to be made regarding the proposed psychiatric evaluation is `literally a life or death matter' and is `difficult . . . even for an attorney' because it requires `a knowledge of what other evidence is available, of the particular psychiatrist's biases and predilections, [and] of possible alternative strategies at the sentencing hearing.' " Id., at 471, quoting Smith v. Estelle, 602 F.2d 694, 708 (CA5 1979).
The Court attempts to distinguish Holloway by arguing that in that case the "deprivation of the right to counsel affected and contaminated the entire criminal proceeding." Ante, at 257. But Holloway anticipated automatic reversal not only when the deprivation affected the entire proceeding, but also when the deprivation occurred during a "critical stage in, at least, the prosecution of a capital offense." 435 U.S., at 489 (emphasis added). By focusing on whether the error occurred in a capital case, Holloway exhibited an appreciation *267 of the heightened concern for reliability in this context something I believe today's decision fails to recognize.[3]
In the end, the Court principally relies on its belief "that a reviewing court can make an intelligent judgment about whether the erroneous admission of psychiatric testimony might have affected a capital sentencing jury." Ante, at 258. I do not possess the same confidence in an appellate court's ability to divine the prejudice arising from such a significant error in a capital sentencing proceeding. In my view, the speculation engendered by harmless-error review of a violation of Estelle v. Smith in the context of a capital sentencing proceeding presents an intolerable danger that the death sentence will be administered erroneously. Accordingly, I do not join in that aspect of the Court's opinion sanctioning harmless-error analysis for violations of Estelle v. Smith.
JUSTICE BLACKMUN, concurring in part and concurring in the judgment.
I join Part II of JUSTICE MARSHALL's concurring opinion because I agree that harmless-error analysis is inappropriate where the error is a Sixth Amendment violation under Estelle v. Smith, 451 U.S. 454 (1981), which results in the erroneous admission of psychiatric testimony in a capital-sentencing proceeding. The situation is particularly acute where, under a system such as that of Texas, the jury must answer the very question that the psychiatrist purports to *268 answer. I am fortified in this conclusion by my continuing concern wholly apart from the testimony of the ubiquitous Doctor Grigson in Texas capital cases about the reliability of psychiatric testimony as to a defendant's future dangerousness (wrong two times out of three). See Barefoot v. Estelle, 463 U.S. 880, 916 (1983) (dissenting opinion).
| I I agree with the Court that the psychiatric examination on which Dr. Grigson testified at the capital sentencing proceeding was in bald violation of and that petitioner's death sentence should be vacated. I write separately because I believe the Court errs in applying harmless-error analysis to this Sixth Amendment violation. It is my view that the unique nature of a capital sentencing determination should cause this Court to be especially hesitant ever to sanction harmless-error review of constitutional errors that taint capital sentencing proceedings, and even if certain constitutional errors might properly be subject to such harmless-error analysis, a violation of is not such an error. Until today's ruling, this Court never had applied harmless-error analysis to constitutional violations that taint the sentencing phase of a capital trial. In deciding to apply harmless-error analysis to the Sixth Amendment violation in this case, I believe the Court fails to adequately consider the unique nature of a capital sentencing proceeding and a sentencer's decision whether a defendant should live or die. The Court's analysis is also flawed in that it fails to accord any noticeable weight to the qualitative difference of death from all other punishments. Unlike the determination of guilt or innocence, which turns largely on an evaluation of objective facts, the question whether death is the appropriate sentence requires a profoundly moral evaluation of the defendant's character and crime. See (a death sentence should "reflect a reasoned moral response to the defendant's background, character, and crime"); Moreover, although much of the Court's capital jurisprudence since has been focused on guiding and channeling the decision whether death is the appropriate sentence in a specific case, the sentencer nonetheless is afforded substantial discretion. See, e. g., ; Even in the face of overwhelming aggravating evidence, the sentencer has discretion to act with leniency and refuse to impose the death sentence. See Because of the moral character of a capital sentencing determination and the substantial discretion placed in the hands of the sentencer, predicting the reaction of a sentencer to a proceeding untainted by constitutional error on the basis of a cold record is a dangerously speculative enterprise. As the Court recognized in "[w]hatever intangibles a jury might consider in its sentencing determination, few can be gleaned from an appellate record." In the same vein, an appellate court is ill equipped to evaluate the effect of a constitutional error on a sentencing determination. Such sentencing judgments, even when guided and channeled, are inherently subjective, and the weight a sentencer gives an instruction or a significant piece of evidence that is later determined to violate a defendant's constitutional rights is nowhere apparent in the record. In the Court acknowledged that "[i]ndividual jurors bring to their deliberations `qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable,' " and their collective judgment of the appropriate sentence is marked by an "inherent lack of predictability." quoting The threat of an erroneous harmless-error determination thus looms much larger in the capital sentencing context than elsewhere. That threat is of particular concern because of the unique nature of the death sentence. The awesome severity of a sentence of death makes it qualitatively different from all other sanctions. See, e. g., For this reason, the Court has *263 emphasized the greater need for reliability in capital cases, and has required that "capital proceedings be policed at all stages by an especially vigilant concern for procedural fairness and for the accuracy of factfinding." ; see Because of this heightened concern for reliability, "[t]ime and again the Court has condemned procedures in capital cases that might be completely acceptable in an ordinary case." Harmless-error analysis impinges directly on the reliability of the capital sentencing decision by allowing a court to substitute its judgment of what the sentencer would have done in the absence of constitutional error for an actual judgment of the sentencer untainted by constitutional error. I therefore have serious doubts whether a constitutional error that infects the sentencing phase of a capital case ever may be considered harmless beyond a reasonable doubt. But even if I could agree that harmless-error analysis is appropriate for certain constitutional errors at the sentencing phase, such a situation is not presented when the error is a violation of the Sixth Amendment under II As an initial matter, the Court in gave no hint that harmless-error analysis ever could apply to the admission of psychiatric testimony in a capital sentencing proceeding which was based on an examination of the defendant conducted in violation of his Sixth Amendment right to counsel. After finding constitutional error, the Court simply vacated the death sentence. See The failure of the Court to engage in harmless-error analysis *264 in is understandable, because the factors on which this Court traditionally has focused to determine whether harmless-error review is appropriate make clear that an violation that taints a capital sentencing proceeding should lead to automatic reversal. First, the potential for actual prejudice resulting from such a violation of is so high that a "case-by-case inquiry into prejudice is not worth the cost." As evidenced in this case, psychiatric testimony is generally of critical importance to the sentencing determination, covering issues of rehabilitative potential, future dangerousness, and individual culpability.[1] Moreover, psychiatric testimony on these issues is clothed with a scientific authority that often carries great weight with lay juries. Cf. Second, it is difficult, if not impossible, to accurately measure the degree of prejudice arising from the failure to notify defense counsel of an impending psychiatric examination and the subsequent admission at the sentencing phase of evidence acquired from the examination. Cf. ; As I discussed above, the decision whether a defendant should live or die is a discretionary, moral judgment involving a balancing of often intangible factors. Divining the effect of psychiatric testimony on a sentencer's determination whether death is an appropriate sentence is thus more in the province of soothsayers than appellate judges. In addition, contrary to the Court's claim, see ante, at 257, the prejudice arising from an violation is not limited to the illegal admission of psychiatric testimony. If defense counsel is properly notified under of the State's intention to perform a psychiatric examination, the course of subsequent proceedings may be altered significantly. For instance, defense counsel might extensively prepare his client for the examination, or perhaps advise his client to refuse to participate in the examination by the particular psychiatrist; defense counsel also might urge that a different psychiatrist perform the examination. Cf. (defendant "was denied the assistance of his attorneys in making the significant decision of whether to submit to the examination and to what end the psychiatrist's findings could be employed"). I therefore believe that any attempt to predict the effect of such an violation would require the appellate court to engage in unguided speculation. The confluence of these factors the likelihood of prejudice and the difficulty in evaluating the degree of that prejudice together with the heightened concern for reliability in capital cases, convinces me that a psychiatric examination conducted in violation of and the later admission at a capital sentencing proceeding of psychiatric testimony based on this examination, may never be considered harmless error.[2] *266 I would have thought that this Court's decision in already had settled the question whether an violation in a capital case can ever be harmless error. In Holloway we stated: " `The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.'. Accordingly, when a defendant is deprived of the presence and assistance of his attorney, either throughout the prosecution or during a critical stage in, at least, the prosecution of a capital offense, reversal is automatic." -489, quoting We stated in that a pretrial examination by a state psychiatrist of a capital defendant is a "critical stage" in a capital case. As the Court recognized in that case, "the decision to be made regarding the proposed psychiatric evaluation is `literally a life or death matter' and is `difficult even for an attorney' because it requires `a knowledge of what other evidence is available, of the particular psychiatrist's biases and predilections, [and] of possible alternative strategies at the sentencing hearing.' " quoting v. Estelle, (CA5 19). The Court attempts to distinguish Holloway by arguing that in that case the "deprivation of the right to counsel affected and contaminated the entire criminal proceeding." Ante, at 257. But Holloway anticipated automatic reversal not only when the deprivation affected the entire proceeding, but also when the deprivation occurred during a "critical stage in, at least, the prosecution of a capital offense." By focusing on whether the error occurred in a capital case, Holloway exhibited an appreciation *267 of the heightened concern for reliability in this context something I believe today's decision fails to recognize.[3] In the end, the Court principally relies on its belief "that a reviewing court can make an intelligent judgment about whether the erroneous admission of psychiatric testimony might have affected a capital sentencing jury." Ante, at 258. I do not possess the same confidence in an appellate court's ability to divine the prejudice arising from such a significant error in a capital sentencing proceeding. In my view, the speculation engendered by harmless-error review of a violation of in the context of a capital sentencing proceeding presents an intolerable danger that the death sentence will be administered erroneously. Accordingly, I do not join in that aspect of the Court's opinion sanctioning harmless-error analysis for violations of JUSTICE BLACKMUN, concurring in part and concurring in the judgment. I join Part II of JUSTICE MARSHALL's concurring opinion because I agree that harmless-error analysis is inappropriate where the error is a Sixth Amendment violation under which results in the erroneous admission of psychiatric testimony in a capital-sentencing proceeding. The situation is particularly acute where, under a system such as that of Texas, the jury must answer the very question that the psychiatrist purports to *268 answer. I am fortified in this conclusion by my continuing concern wholly apart from the testimony of the ubiquitous Doctor Grigson in Texas capital cases about the reliability of psychiatric testimony as to a defendant's future dangerousness (wrong two times out of three). See |
Justice Douglas | majority | false | Ford Motor Co. v. United States | 1972-03-29T00:00:00 | null | https://www.courtlistener.com/opinion/108494/ford-motor-co-v-united-states/ | https://www.courtlistener.com/api/rest/v3/clusters/108494/ | 1,972 | 1971-084 | 2 | 5 | 2 | This is a direct appeal under § 2 of the Expediting Act, 32 Stat. 823, as amended, 15 U.S. C. § 29, from a judgment of the District Court (286 F. Supp. 407, 315 F. Supp. 372), holding that Ford Motor Co. (Ford) violated § 7 of the Celler-Kefauver Antimerger Act[1] by acquiring certain assets from Electric Autolite Co. (Autolite). The assets included the Autolite trade name, Autolite's only *565 spark plug plant in this country (located at New Fostoria, Ohio), a battery plant, and extensive rights to its nationwide distribution organization for spark plugs and batteries. The present appeal[2] is limited to that portion of the judgment relating to spark plugs and ordering Ford to divest the Autolite name and the spark plug plant. The ancillary injunctive provisions are also here for review.
I
Ford, the second-leading producer of automobiles, General Motors, and Chrysler together account for 90% of the automobile production in this country. Though Ford makes a substantial portion of its parts, prior to its acquisition of the assets of Autolite it did not make spark plugs or batteries but purchased those parts from independent companies.
The original equipment of new cars, insofar as spark plugs are concerned, is conveniently referred to as the OE tie. The replacement market is referred to as the aftermarket. The independents, including Autolite, furnished the auto manufacturers with OE plugs at cost or less, about six cents a plug, and they continued to sell at that price even when their costs increased threefold. The independents sought to recover their losses on OE sales by profitable sales in the aftermarket where the requirement of each vehicle during its lifetime is about five replacement plug sets. By custom and practice among mechanics, the aftermarket plug is usually the same brand as the OE plug. See generally Hansen & Smith, The Champion Case: What Is Competition?, 29 Harv. Bus. Rev. 89 (1951).
Ford was anxious to participate in this aftermarket and, after various efforts not relevant to the present case, concluded that its effective participation in the aftermarket *566 required "an established distribution system with a recognized brand name, a full line of high volume service parts, engineering experience in replacement designs, low volume production facilities and experience, and the opportunity to capitalize on an established car population."
Ford concluded it could develop such a division of its own but decided that course would take from five to eight years and be more costly than an acquisition. To make a long story short, it acquired certain assets of Autolite in 1961.
General Motors had previously entered the spark plug manufacturing field, making the AC brand. The two other major domestic producers were independents Autolite and Champion. When Ford acquired Autolite, whose share of the domestic spark plug market was about 15%, only one major independent was left and that was Champion, whose share of the domestic market declined from just under 50% in 1960 to just under 40% in 1964 and to about 33% in 1966. At the time of the acquisition, General Motors' market share was about 30%. There were other small manufacturers of spark plugs but they had no important share of the market.[3]
The District Court held that the acquisition of Autolite violated § 7 of the Celler-Kefauver Antimerger Act *567 because its effect "may be substantially to lessen competition."[4] It gave two reasons for its decision.
First, prior to 1961 when Ford acquired Autolite it had a "pervasive impact on the aftermarket," 315 F. Supp., at 375, in that it was a moderating influence on Champion and on other companies derivatively. It explained that reason as follows:
"An interested firm on the outside has a twofold significance. It may someday go in and set the stage for noticeable deconcentration. While it merely stays near the edge, it is a deterrent to current competitors. United States v. Penn-Olin Chemical Co., 378 U.S. 158 . . . (1964). This was Ford uniquely, as both a prime candidate to manufacture and the major customer of the dominant member of the oligopoly. Given the chance that Autolite would have been doomed to oblivion by defendant's grassroots entry, which also would have destroyed Ford's soothing influence over replacement prices, Ford may well have been more useful as a potential than it *568 would have been as a real producer, regardless how it began fabrication. Had Ford taken the internal-expansion route, there would have been no illegality; not, however, because the result necessarily would have been commendable, but simply because that course has not been proscribed." 286 F. Supp., at 441.
See also FTC v. Procter & Gamble Co., 386 U.S. 568; United States v. Penn-Olin Chemical Co., 378 U.S. 158.
Second, the District Court found that the acquisition marked "the foreclosure of Ford as a purchaser of about ten per cent of total industry output." 315 F. Supp., at 375. The District Court added:
"In short, Ford's entry into the spark plug market by means of the acquisition of the factory in Fostoria and the trade name `Autolite' had the effect of raising the barriers to entry into that market as well as removing one of the existing restraints upon the actions of those in the business of manufacturing spark plugs.
"It will also be noted that the number of competitors in the spark plug manufacturing industry closely parallels the number of competitors in the automobile manufacturing industry and the barriers to entry into the auto industry are virtually insurmountable at present and will remain so for the foreseeable future. Ford's acquisition of the Autolite assets, particularly when viewed in the context of the original equipment (OE) tie and of GM's ownership of AC, has the result of transmitting the rigidity of the oligopolistic structure of the automobile industry to the spark plug industry, thus reducing the chances of future deconcentration of the spark plug market by forces at work within that market." Ibid.
*569 See also FTC v. Consolidated Foods Corp., 380 U.S. 592; Brown Shoe Co. v. United States, 370 U.S. 294; United States v. Du Pont & Co., 353 U.S. 586.
We see no answer to that conclusion if the letter and spirit of the Celler-Kefauver Antimerger Act[5] are to be honored. See United States v. Philadelphia National Bank, 374 U.S. 321, 362-363; United States v. Penn-Olin Chemical Co., 378 U. S., at 170-171; Brown Shoe Co. v. United States, 370 U. S., at 311-323.
It is argued, however, that the acquisition had some beneficial effect in making Autolite a more vigorous and *570 effective competitor against Champion and General Motors than Autolite had been as an independent. But what we said in United States v. Philadelphia National Bank, supra, disposes of that argument. A merger is not saved from illegality under § 7, we said,
"because, on some ultimate reckoning of social or economic debits and credits, it may be deemed beneficial. A value choice of such magnitude is beyond the ordinary limits of judicial competence, and in any event has been made for us already, by Congress when it enacted the amended § 7. Congress determined to preserve our traditionally competitive economy. It therefore proscribed anticompetitive mergers, the benign and the malignant alike, fully aware, we must assume, that some price might have to be paid." 374 U.S., at 371.
Ford argues that the acquisition left the marketplace with a greater number of competitors. To be sure, after Autolite sold its New Fostoria plant to Ford, it constructed another in Decatur, Alabama, which by 1964 had 1.6% of the domestic business. Prior to the acquisition, however, there were only two major independent producers and only two significant purchasers of original equipment spark plugs. The acquisition thus aggravated an already oligopolistic market.
As we indicated in Brown Shoe Co. v. United States, 370 U. S., at 323-324:
"The primary vice of a vertical merger or other arrangement tying a customer to a supplier is that, by foreclosing the competitors of either party from a segment of the market otherwise open to them, the arrangement may act as a `clog on competition,' Standard Oil Co. of California v. United States, 337 U.S. 293, 314, which `deprive[s] . . . rivals of a fair opportunity to compete.' H. R. Rep. No. 1191, *571 81st Cong., 1st Sess. 8. Every extended vertical arrangement by its very nature, for at least a time, denies to competitors of the supplier the opportunity to compete for part or all of the trade of the customer-party to the vertical arrangement."
Moreover, Ford made the acquisition in order to obtain a foothold in the aftermarket. Once established, it would have every incentive to perpetuate the OE tie and thus maintain the virtually insurmountable barriers to entry to the aftermarket.
II
The main controversy here has been over the nature and degree of the relief to be afforded.
During the year following the District Court's finding of a § 7 violation, the parties were unable to agree upon appropriate relief. The District Court then held nine days of hearings on the remedy and, after full consideration, concluded that divestiture and other relief were necessary.
The OE tie, it held, was in many respects the key to the solution since the propensity of the mechanic in a service station or independent garage is to select as a replacement the spark plug brand that the manufacturer installed in the car. The oligopolistic structure of the spark plug manufacturing industry encourages the continuance of that system. Neither GM nor Autolite sells private-label plugs. It is obviously in the self-interest of OE plug manufacturers to discourage private-brand sales and to encourage the OE tie. There are findings that the private-brand sector of the spark plug market will grow substantially in the next decade because mass merchandisers are entering this market in force. They not only sell all brands over the counter but also have service bays where many carry only spark plugs of their own proprietary brand. It is anticipated that by 1980 *572 the total private brand portion of the spark plug market may then represent 17% of the total aftermarket. The District Court added:
"To the extent that the spark [plug] manufacturers are not owned by the auto makers, it seems clear that they will be more favorably disposed toward private brand sales and will compete more vigorously for such sales. Also, the potential entrant continues to have the chance to sell not only the private brand customer but the auto maker as well." 315 F. Supp., at 378.
Accordingly the decree
(1) enjoined Ford for 10 years from manufacturing spark plugs,
(2) ordered Ford for five years to purchase one-half of its total annual requirement of spark plugs from the divested plant under the "Autolite" name,
(3) prohibited Ford for the same period from using its own trade names on plugs,
(4) protected New Fostoria, the town where the Autolite plant is located, by requiring Ford to continue for 10 years its policy of selling spark plugs to its dealers at prices no less than its prevailing minimum suggested jobbers' selling price,[6]
(5) protected employees of the New Fostoria plant by ordering Ford to condition its divestiture sale on the purchaser's assuming the existing wage and pension obligations and to offer employment to any employee displaced by a transfer of nonplug operations from the divested plant.[7]
*573 The relief in an antitrust case must be "effective to redress the violations" and "to restore competition."[8]United States v. Du Pont & Co., 366 U.S. 316, 326. The District Court is clothed with "large discretion" to fit the decree to the special needs of the individual case. International Salt Co. v. United States, 332 U.S. 392 401; United States v. Du Pont & Co., 353 U. S., at 608; United States v. Crescent Amusement Co., 323 U.S. 173, 185.
Complete divestiture is particularly appropriate where asset or stock acquisitions violate the antitrust laws. United States v. Du Pont & Co., supra, at 328-335; United States v. Crescent Amusement Co., supra, at 189; Schine Chain Theatres v. United States, 334 U.S. 110, 128; United States v. El Paso Gas Co., 376 U.S. 651.
Divestiture is a start toward restoring the pre-acquisition situation. Ford once again will then stand as a large industry customer at the edge of the market with *574 a renewed interest in securing favorable terms for its substantial plug purchases. Since Ford will again be a purchaser, it is expected that the competitive pressures that existed among other spark plug producers to sell to Ford will be re-created. The divestiture should also eliminate the anticompetitive consequences in the aftermarket flowing from the second largest automobile manufacturer's entry through acquisition into the spark plug manufacturing business.
The divested plant is given an incentive to provide Ford with terms which will not only satisfy the 50% requirement provided for five years by the decree but which even after that period may keep at least some of Ford's ongoing purchases. The divested plant is awarded at least a foothold in the lucrative aftermarket and is provided an incentive to compete aggressively for that market.
As a result of the acquisition of Autolite, the structure of the spark plug industry changed drastically, as already noted. Ford, which before the acquisition was the largest purchaser of spark plugs from the independent manufacturers, became a major manufacturer. The result was to foreclose to the remaining independent spark plug manufacturers the substantial segment of the market previously open to competitive selling and to remove the significant procompetitive effects in the concentrated spark plug market that resulted from Ford's position on the edge of the market as a potential entrant.
To permit Ford to retain the Autolite plant and name and to continue manufacturing spark plugs would perpetuate the anticompetitive effects of the acquisition.[9]
*575 The District Court rightly concluded that only divestiture would correct the condition caused by the unlawful acquisition.
A word should be said about the other injunctive provisions. They are designed to give the divested plant an opportunity to establish its competitive position. The divested company needs time so it can obtain a foothold in the industry. The relief ordered should "cure the ill effects of the illegal conduct, and assure the public freedom from its continuance," United States v. United States Gypsum Co., 340 U.S. 76, 88, and it necessarily must "fit the exigencies of the particular case." International Salt Co. v. United States, 332 U. S., at 401. Moreover, "it is well settled that once the Government has successfully borne the considerable burden of establishing a violation of law, all doubts as to the remedy are to be resolved in its favor." United States v. Du Pont & Co., 366 U. S., at 334.
Ford concedes that "[i]f New Fostoria is to survive, it must for the foreseeable future become and remain the OE supplier to Ford and secure and retain the benefits of such OE status in sales of replacement plugs." The ancillary measures ordered by the District Court are designed to allow Autolite to re-establish itself in the OE and replacement markets and to maintain it as a viable competitor until such time as forces already at work within the marketplace weaken the OE tie. Thus Ford is prohibited for 10 years from manufacturing its own plugs.[10] But in five years it can buy its plugs from any source and use its name on OE plugs.
*576 But prior to that time Ford cannot use or market plugs bearing the Ford trade name. In view of the importance of the OE tie, if Ford were permitted to use its own brand name during the initial five-year period, there would be a tendency to impose the oligopolistic structure of the automotive industry on the replacement parts market and the divested enterprise might well be unable to become a strong competitor. Ford argues that any prohibition against the use of its name is permissible only where the name deceives or confuses the public.[11] But this is not an unfair competition case. The temporary ban on the use of the Ford name is designed to restore the pre-acquisition competitive structure of the market.
The requirement that, for five years, Ford purchase at *577 least half of its spark plug requirements from the divested company under the Autolite label is to give the divested enterprise an assured customer while it struggles to be re-established as an effective, independent competitor.
It is suggested, however, that "the District Court's orders assured that Ford could not begin to have brand name success in the replacement market for at least 10 to 13 years." Post, at 591. This conclusion distorts the effect of the District Court decree and the nature of the spark plug industry. Ford's own studies indicate that it would take five to eight years for it to develop a spark plug division internally. A major portion of this period would be devoted to the development of a viable position in the aftermarket. The five-year prohibition on the use of its own name and the 10-year limitation on its own manufacturing mesh neatly to allow Ford to establish itself in the aftermarket prior to becoming a manufacturer while, at the same time, giving Autolite the opportunity to re-establish itself by providing a market for its production. Thus, the District Court's decree delays for only two to five years the date on which Ford may become a manufacturer with an established share of the aftermarket. Given the normal five-to-eight-year lead time on entry through internal expansion, the District Court's decree does not significantly lessen Ford's moderating influence as a potential entrant on the edge of the market. Moreover, in light of the interim benefits this ancillary relief will have on the re-establishment of Autolite as a viable competitor and of Ford as a major purchaser, we cannot agree with the characterization of the relief as "harshly restrictive," post, at 595, or the assertion that the decree, in any practical and significant sense, "prohibit[s] Ford from entering the market through internal expansion." Post, at 592.
Antitrust relief should unfetter a market from anti-competitive conduct and "pry open to competition a *578 market that has been closed by defendants' illegal restraints." International Salt Co. v. United States, 332 U. S., at 401. The temporary elimination of Ford as a manufacturer of spark plugs lowers a major barrier to entry to this industry. See C. Kaysen & D. Turner, Antitrust PolicyAn Economic and Legal Analysis 116 (1959). Forces now at work in the marketplace may bring about a deconcentrated market structure and may weaken the onerous OE tie. The District Court concluded that the forces of competition must be nurtured to correct for Ford's illegal acquisition. We view its decree as a means to that end.[12]
The thorough and thoughtful way the District Court considered all aspects of this case, including the nature of the relief, is commendable. The drafting of such a decree involves predictions and assumptions concerning future economic and business events. Both public and private interests are involved; and we conclude that the District Court with a single eye to the requirements of § 7 and the violation that was clearly established made a reasonable judgment on the means needed to restore and encourage the competition adversely affected by the acquisition.
Affirmed.
MR. JUSTICE POWELL and MR. JUSTICE REHNQUIST took no part in the consideration or decision of this case.
*579 MR. JUSTICE STEWART, concurring in the result.
The spark plug industry as it stood prior to Ford's acquisition of Autolite was hardly characterized by vigorous competition. For 25 years, the industry had consisted of AC, owned by and supplying original equipment (OE) plugs to General Motors; Champion, independent and supplying Ford; Autolite, independent and supplying Chrysler; and a number of small producers who had no OE sales and only a minuscule share of the aftermarket.[1] The habit among mechanics of installing replacement plugs carrying the same brand as the automobile's original plugs, reinforced by the unwillingness of service stations to stock more than two or three brands,[2] made possible the "OE tie," which rendered any large-scale entry into the aftermarket virtually impossible without first obtaining a large OE customer. Moreover, price competition was minimal, both in the OE market (where any reduction in the six-cent price would immediately be matched by rivals), and in the aftermarket (where spark plugs accounted for such a small percentage of the normal tuneup charge that price differentials did not have a significant impact upon consumer choice).
The District Court found that the acquisition of Autolite's spark plug assets by Ford further lessened competition in the industry in two ways: it foreclosed Ford as a potential purchaser of spark plugs from independent producers, and it eliminated what the District Court found to have been Ford's "moderating effect" upon Champion's pricing policies in the aftermarket. These *580 findings standing alone might provide a basis for concluding that the acquisition violated § 7, but, as THE CHIEF JUSTICE demonstrates in his dissenting opinion, post, at 591-592, the remedy ordered will not restore the preacquisition market forces upon which the District Court focused. For, under the court's injunctions, Ford will be neither a potential market entrant, nor a potential purchaser of half its OE requirements from producers other than Autolite, for a substantial period of time after the divestiture takes place.
In my judgment, both the finding of a § 7 violation and the remedy ordered may be better rationalized in terms of probable future trends in the spark plug market, visible at the time of the acquisition. The District Court observed that "a court cannot shut its eyes to contemporary or predictable factors conducive to change in the competitive structure." 286 F. Supp. 407, 442. This was a proper inquiry because we have held that § 7 "requires not merely an appraisal of the immediate impact of the merger upon competition, but a prediction of its impact upon competitive conditions in the future." United States v. Philadelphia National Bank, 374 U.S. 321, 362.[3]
*581 The District Court found that the growth of service-centers operated by mass merchandisers carrying private label brands might eventually loosen the OE tie and the tight oligopoly in the spark plug market that it had fostered. Had Ford entered the market through internal expansion, either Champion or Autolite would have been left without an OE entry, but would nevertheless have owned an established brand name with an existing distribution system, together with a large production capacity. Even the threat of being so stranded, not to mention its realization, would have given both Champion and Autolite an incentive to compete as suppliers to private label sellers, as these sellers began to represent a significant share of the market, and to undermine the OE tie. Ford's acquisition of Autolite did more than foreclose it as a potential OE customer, or eliminate its "moderating effect" upon Champion's pricing policies: it eliminated one of the only two independent producers with a sufficient share of the aftermarket to give it a chance to compete effectively without an OE tie. Thus, the acquisition had the probable effect of indefinitely postponing the day when existing market forces could produce a measurable deconcentration in the market.
While the District Court did not justify the divestiture in precisely these terms, I think its prediction of future trends in the spark plug industry is an adequate basis to support the remedy ordered. THE CHIEF JUSTICE'S opinion, post, at 591-592, is correct in its assertion that the ancillary injunctions are anticompetitive in the short run, and that the District Court took extraordinary measures to mother the divested producer for the next decade. But I cannot say that these injunctions are not reasonably calculated to establish the new Autolite producer as a viable firm and thus to restore the pre-acquisition market structure, insofar as it is now possible to do so. A divestiture decree *582 without ancillary injunctions would not automatically restore the status quo ante, as THE CHIEF JUSTICE'S opinion seems to assume. The Electric Autolite Company, from which Ford acquired the assets in question here, will not be recreated by the divestiture, and it is reasonable to assume that a new owner of the Autolite trade name and the New Fostoria plant will require a period of time to become as effective a competitor as was Electric Autolite prior to the acquisition.
Though the economics of the market are such that the divestiture cannot be assured of success, it does at least have a chance of bringing increased competition to the spark plug industry. And while divestiture remedies in § 7 cases have not enjoyed spectacular success in the past, remedies short of divestiture have been uniformly unsuccessful in meeting the goals of the Act. See Elzinga, The Antimerger Law: Pyrrhic Victories, 12 J. Law & Econ. 43 (1969).
MR. CHIEF JUSTICE BURGER, concurring in part and dissenting in part.
In addition to requiring divestiture of Autolite, the District Court made ancillary injunctive provisions that go far beyond any that have been cited to the Court. Ford is forbidden to manufacture spark plugs for 10 years; Ford is ordered to purchase one-half of its total annual requirement of spark plugs from the divested company under the "Autolite" name, and Ford is forbidden for the same period to use its own trade name on any spark plugs. These provisions are directed to prevent Ford from making an independent entry into the spark plug market and, in effect, to require it to subsidize Autolite for a period of time. Despite the Draconian quality of this restriction on Ford, I can find no justification in the District Court's findings for this *583 remedy. I dissent from the broad sweep of the District Court's remedial decree. I would remand for further consideration of the remedial aspects of this case.
An understanding of the District Court's findings as to the spark plug market shows three reasons why it was in error in requiring Ford to support Autolite. First, the court did not find that the weakness of an independent Autolite's competitive position resulted from Ford's acquisition. Rather, a reading of its findings makes apparent that the precariousness of Autolite's expected post-divestment position results from pre-existing forces in the market. Therefore, the drastic measures employed to strengthen Autolite's position at Ford's expense cannot be justified as a remedy for any wrong done by Ford. Second, the remedy will perpetuate for a time the very evils upon which the District Court based a finding of an antitrust violation. Third, the court's own findings indicate that the remedy is not likely to secure Autolite's competitive position beyond the termination of the restrictions. Therefore, there is no assurance that the judicial remedy will have the desired impact on long-run competition in the spark plug market.
The Court makes two critical errors in order to avoid the effect of this reasoning. It rejects the factfinding by the District Court in order to uphold its remedial order; and it repeats that court's error by discussing the assistance necessary to restore Autolite to the status quo ante without ever delineating that prior state of affairs or indicating how Ford, by acquiring Autolite and holding it for a number of years, had undermined its ability to reassume its former independent competitive position.
The District Court made extensive findings on the nature of the spark plug market. Some of these findings appear in the Court's opinion, but some factors that *584 seem crucial to me are either omitted or not adequately set forth. Therefore I will sketch these findings at some risk of repetition.
Beyond doubt, the spark plug market has been overwhelmingly dominated by three manufacturers for a long period: AC, owned by General Motors, which had about 30% of the market in 1961; Champion, which had supplied Ford since 1910 and had approximately 50% of the market in 1961; and Autolite, which had supplied Chrysler since 1941 and had 15% of the market in 1961. Together these three companies had over 95% of the total market in 1961.
The reason for the continued domination of the market by the three big plug manufacturers is the pervasive feature of the plug market known as the "OE (original equipment) tie." This denominates the phenomenon that mechanics who replace spark plugs in a car engine have tended, almost exclusively, to use the brand of plug installed by the auto builder as original equipment. Though not required by spark plug technology, mechanics have followed this practice because of a strong desire to avoid any chance of injuring an engine by putting a mismatched plug into it. Further, because plugs are low-profit items, those who install them tend to carry an inventory of a small number of brands. Most carry only two and some carry three brands, and they choose the brands installed by the big auto manufacturers as original equipment. Thus, it takes a position as supplier to a large auto maker to gain recognition in the spark plug replacement market. The Government conceded in the District Court, for instance, that American Motors, with 5% of the auto market, would not be able to create market acceptance for an independent brand of plug by installing it as original equipment in its cars.
Because of the competitive importance of having their plugs installed as original equipment by one of the three *585 auto companies, plug manufacturers have over a long period been willing to sell OE plugs for initial installation by auto manufacturers at a price below their production cost. The longstanding price for OE plugs, about 6 cents, is now approximately one-third of the cost of producing these plugs. Such below-cost selling is profitable for the plug companies because of the foothold it gives them in competing for the normal five or six sets of replacement plugs necessary in the lifespan of an automobile. This pricing policy has been partially responsible for the semipermanent relations between the plug manufacturers and the auto manufacturers: it is only those plug companies that profit from the OE tie over the long run that can afford this below-cost sale to the auto companies.
The strength of the OE tie is demonstrated by the inability of well-known auto supply manufacturers to gain a significant share of the spark plug market in the absence of an OE tie. As the District Court found, no company without the OE tie
"ever surpassed the 2% level. Several have come and gone. Firestone Tire and Rubber Company merchandised `Firestone' replacements for 35 years before it gave up in 1964. Although it owned some 800 accessory stores and successfully wholesaled other items to more than 50,000 shops and filling stations, it could not surmount the patent discrimination against brands not blessed with Detroit's approbation. Goodyear Tire and Rubber Company quit in only three years. Globe Union, a fabricator which had barely 1% of the nation's shipments, withdrew in 1960." 286 F. Supp. 407, 434-435.
Two small manufacturers survive, producing plugs for private-label brands. Thus "Atlas" plugs, sponsored by *586 the Standard Oil companies, has 1.4% of the replacement market; "Prestolite" and Sears, Roebuck's "Allstate" each have 1.2%; and Montgomery Ward's "Riverside" label has 0.6% of the replacement market.
An independent entry into the plug market by Ford, with the expected substitution of its own plugs as original equipment in its cars, would have necessarily deprived one of the two significant independent plug producers of its OE status. The District Court found that, because of the importance of the OE tie, the plug producer deprived of this support would most likely have lost any significant position in the market.[1] Autolite, with only 15% of the market before the acquisition, would certainly have lost any significant position in the market if an independent entry by Ford had led Chrysler to shift its patronage from Autolite to Champion. The District Court asserted that a Champion without OE status would have had some chance of maintaining a significant market position because of its size, although it gave no reason for thinking Champion's size immunized it from dependence on OE status. Before 1961, Champion had just under 50% of the market. As a result of Champion's move to Chrysler in 1961, its position in the market dropped to 33% by 1966. The District Court found no basis for predicting which of the two big independents would have won such a competition for continued OE status.
Thus, an independent entry by Ford would not likely have increased the number of significant competitors in the spark plug market. Rather, it would simply have substituted Ford for one of the two significant independent manufacturers. The result of this expectation *587 is that the District Court did not base its finding of illegality on the ground typically present when a potential entrant enters an oligopolistic market by acquisition rather than internal expansion, i. e., that such a move has deprived the market of the pro-competitive effect of an increase in the number of competitors. Here an independent entry would not have increased the number of competitors but simply would have exchanged one competitor for another. In noting this paradoxical fact, the District Court concluded that "Ford may well have been more useful as a potential than it would have been as a real producer, regardless how it began fabrication."[2] 286 F. Supp., at 441.
Not finding that Ford's entry by acquisition had deprived the spark plug market of any pro-competitive effect of an independent entry, the District Court relied on two other grounds for finding a violation of the antitrust laws. First, it concluded that as a potential entrant on the edge of the market which was also a major purchaser in the market, Ford exercised a "moderating" influence on the market; the second basis for determining the acquisition illegal was the finding that the acquisition *588 "foreclosed" other companies from competing for the business of supplying Ford with spark plugs.
With respect to Autolite itself, the District Court made several relevant findings. First, it found that Autolite is a fixed-production plant. In other words, it can be profitable only turning out approximately the number of plugs it now manufactures. It could not, for instance, reduce its production by half and sell that at a profit. Second, it made extensive findings with respect to Autolite's distribution system:
"Ford received six regional offices, personnel and a list of Electric Autolite's warehousers and jobbers. All of these have been and still are at liberty to deal with anyone they wish. Each old direct account had to be visited individually and, if it consented, be re-signed by defendant [Ford]. Within a few months, 52 did enter into new ignition contracts. However, 50 of these for the previous year had also been . . . [distributors of other Ford products]. By mid-1966, direct accounts totaled 156, of which 104 in 1960 had been pledged to neither Ford nor Autolite. The same bloc of 50 had been committed to both. The net increase traceable with any semblance of accuracy to the acquisition is two first-layer middlemen . . . ." 286 F. Supp., at 422.
As to difficulties that a divested Autolite might have in establishing an independent distribution system, the District Court mentioned only one:[3] if Ford were to offer its own plugs to its car dealers at a fairly low price, one which independent jobbers could not meet, Autolite *589 would have difficulty independently establishing its distribution system. The jobbers would be less interested in handling Autolite's line since the Ford dealers would not want Autolite at the jobbers' price and, with this demand cut out, the jobbers would be less interested in pushing Autolite generally.
There is another set of relevant facts found by the District Court. The District Judge found that "there is a rising wind of new forces in the spark plug market which may profoundly change it." 315 F. Supp. 372, 377. On the basis of the testimony of an executive of one of the producers of plugs for private labels, the court found that the private-brand sector would grow during the next 10 years. This highly speculative observation of the District Court was based on a finding that the mass merchandisers are beginning to enter the plug marketing field in force. Not only do the mass merchandisers market private-brand plugs over the counter, but they are also building service bays. And in these bays many carry only their own proprietary brand of spark plugs. This witness predicted that the mass merchandisers would increase their share of the aftermarket from 4.4% to 10% by 1980. He further predicted that oil companies would enter the replacement market, resulting in a total of 17% of the replacement market being supplied by private-label plugs by 1980. The court concluded that these forces "may well lead to [the market's] eventual deconcentration by increasing the number of potential customers for a new entrant into the plug manufacturing business and reducing the need for original equipment identification." 315 F. Supp., at 378.
In its separate opinion on remedies, the District Court correctly stated the relevant law; the purpose, and limit of antitrust remedies, is to
"free these forces [within the market] from the unlawful restraint imposed upon them so that they *590 may run their natural course." 315 F. Supp., at 377.
The violators may not be required to do more than return the market to the status quo ante. See United States v. Paramount Pictures, Inc., 334 U.S. 131, 152-153 (1948); Reynolds Metals Co. v. FTC, 114 U. S. App. D. C. 2, 309 F.2d 223 (1962) (Burger, J.). Applying this general provision to the instant situation, the District Court correctly stated:
"The court wishes to note here that although it finds that divestiture is the only effective remedy, it does not agree with the Government that the remedy should be affirmatively designed to `break the OE tie.' The remedy is designed to correct the violations of Section 7 found by the court. The OE tie, as such, does not violate Section 7." 315 F. Supp., at 378.
The District Court then concluded that, in addition to divestiture of the Autolite plant and trade name, certain injunctive provisions were required "to give [Autolite] an opportunity to establish its competitive position." Ibid. It therefore ordered that Ford be prohibited from manufacturing spark plugs for a period of 10 years. It further ordered that for a period of five years Ford would be required to purchase one-half of its total annual needs of spark plugs from Autolite, bearing the Autolite label. For this five-year period Ford was also ordered not to use or market a spark plug under a trade name owned by or licensed to it. The effect of these orders was twofold. They assured Autolite of a purchaser for a large part of its production for five years. And they prevented Ford from immediately entering the competition for a share of the aftermarket with a plug under its own name; it could not even label a plug under its own name for five years and could not manufacture its own plug for 10 years. *591 Given the findings of the court that even with the status of supplier of original equipment (with the company's own brand name on plugs) to a major auto manufacturer it would take a new entrant into the spark plug market five to eight years to establish a position for its brand in the replacement market, the District Court's orders assured that Ford could not begin to have brand-name success in the replacement market for at least 10 to 13 years.[4]
In my view these drastic remedial provisions are not warranted by the court's findings as to the grounds on which Ford's acquisition violated the antitrust laws. Further, in light of the District Court's own factfindings, these remedies will have short run anticompetitive impact and they give no assurance that they will succeed in allowing Autolite to establish its competitive position.
The remedial provisions are unrelated to restoring the status quo ante with respect to the two violations found by the District Court, the ending of Ford's status as a potential entrant with a moderating influence on the market and the foreclosure of a significant part of the plug market. Indeed, the remedies may well be anticompetitive in both respects. First, the District Court's order actually undercuts the moderating influence of Ford's position on the edge of the market. It is the *592 possibility that a company on the sidelines will enter a market through internal expansion that has a moderating influence on the market. By prohibiting Ford from entering the market through internal expansion, therefore, the remedy order wipes out, for the duration of the restriction, the pro-competitive influence Ford had on the market prior to its acquisition of Autolite. Second, the Court's order does not fully undo the foreclosure effect of the acquisition. Divestment alone would return the parties to the status quo ante. Ford would then be free to deal with Autolite or another plug producer or to enter the market through internal expansion. Yet the Court has ordered Ford to buy at least half its requirements from Autolite for five years. Thus, the order itself forecloses part of Ford's needs from the forces of competition.
The above problems might be minor if the District Court's remedy were justifiable in terms of returning Autolite to the status quo ante by overcoming some harm to its ability to compete accomplished by Ford's acquisition. But on this issue the District Court opinion and the majority of this Court are confused. Although the District Court asserted that Autolite needed the aid of its injunctive remedies to establish its competitive position, the court made no findings in its remedy opinion as to the source of Autolite's competitive weakness. Therefore it never reached the issue whether the source of weakness had anything to do with the violations attributed to Ford. Instead, the court's opinion proceeded from the recognition of competitive problems immediately to the prescription of a remedy.
In fact, a fair reading of the findings of the District Court shows that the acquisition did not injure Autolite's competitive position. Autolite's OE status was continued and its share of the aftermarket was increased from 12.5% to 19%. Thus, its trademark is at least as strong now as when Ford acquired the company. Nor *593 did the acquisition and holding of Autolite injure its distribution system. The District Court found that Autolite did not own a distribution system. It merely had short-term contracts with jobbers who distributed its plugs to those who install them in cars or sell them to the public. Almost all of these jobbers had concurrent distribution relations with Ford. In fact, between 1961 and 1966 Ford tripled the number of jobbers handling Autolite plugs. From the opinion below, it appears that Ford has done nothing that will prevent an independent Autolite from seeking to maintain these distribution channels. The only possible finding of injury to be squeezed out of the acquisition relates to the fact that Autolite has been shorn of its status as OE supplier of Chrysler. But this is inconclusive. Autolite had nothing more in its position as OE supplier to Chrysler than it would if Ford voluntarily chose to use Autolite plugs after the divestment: a relationship based on short-term contracts the auto manufacturer could refuse to renew at any time.
The findings of the District Court indicate that Autolite's precarious position did not result from its acquisition by Ford. Prior to the acquisition both Champion and Autolite were in a continually precarious position in that their continued large share of the market was totally dependent on their positions as OE suppliers to auto manufacturers. The very factor that assured that they faced no serious competition in the short run also assured that in the long run their own position was dependent on their relationship with a large auto manufacturer. Thus, the threat to Autolite posed by a simple divestiture is the same threat it had lived with between 1941 and 1961 as an independent entity: it might be left without any OE supply relationship with a major auto manufacturer, and therefore its market position based on this relationship might decline drastically.
*594 Today's opinion errs when it states, ante, at 571, that the District Judge found the OE tie the "key to the solution" of this problem. Although the court indeed found this tie a pervasive factor in the market, it also found that the phenomenon was not created by Ford and that it did not constitute a § 7 violation. Therefore the Court errs in justifying the ancillary remedies as necessary to overcome the OE tie. Even if such a remedy might overcome the OE tie, which I question, there is no justification for burdening Ford with the restrictive order.
Further, the only conclusion to be drawn from the trial findings is that the remedy is unlikely to result in a secure market position for Autolite at the end of the restricted period. Once again it will be dependent for its survival on whether it can maintain an OE supply status. The District Court's suggestion that Autolite can find a niche supplying private-brand labels is unpersuasive. It cannot be predicted with any certainty that these sales outlets will grow to the extent predicted by one person in that line of the business. Further, even if they do, this is no assurance of Autolite's survival. There are already several companies in the business of producing plugs for private labels. Autolite will have to compete with them. The results will not be helpful. One possibility is that Autolite would completely monopolize the private-brand market to the extent of about 17% of the replacement market. This is as uncompetitive as it is unlikely. The more reasonable likelihood is that Autolite might be able to gain a position producing, for instance, 5% of the replacement market plugs. But this would be useless because the District Court's findings make clear that Autolite's fixed-production plant cannot supply such a small share of the market at a profit.
In the final analysis it appears to me that the District Court, seeing the immediate precariousness of Autolite's *595 position as a divested entity, designed remedies to support Autolite without contemplating whether it was equitable to restrict Ford's freedom of action for these purposes or whether there was any real chance of Autolite's eventual survival. I fear that this is a situation where the form of preserving competition has taken precedence over an understanding of the realities of the particular market. Therefore I dissent from today's affirmance of the District Court's harshly restrictive remedial provisions.[5]
MR. JUSTICE BLACKMUN, concurring in part and dissenting in part.
I concur in Part I of the Court's opinion and in that portion of Part II that approves divestiture as part of the remedy. I cannot agree, however, that prohibiting Ford from using its own name or its trade name on any spark plugs for five years and enjoining it entirely from manufacturing plugs for 10 years is just, equitable, or necessary. Instead, the stringency of those remedial provisions strikes me as confiscatory and punitive. The Court's opinion, ante, at 566, recognizes that Ford could develop its own spark plug division internally and place itself in the same position General Motors has occupied for so long, but that this would take from five to eight years. The restraint on Ford's entering the spark plug area is thus for a period longer than it would take Ford to achieve a position in the market through internal development. And to deny it the use of its own name is to deny it a property right that has little to do with this litigation.
| This is a direct appeal under 2 of the Expediting Act, as amended, 15 U.S. C. 29, from a judgment of the District Court (, ), holding that Ford Motor (Ford) violated 7 of the Celler-Kefauver Antimerger Act[1] by acquiring certain assets from Electric Autolite (Autolite). The assets included the Autolite trade name, Autolite's only *565 spark plug plant in this country (located at New Fostoria, Ohio), a battery plant, and extensive rights to its nationwide distribution organization for spark plugs and batteries. The present appeal[2] is limited to that portion of the judgment relating to spark plugs and ordering Ford to divest the Autolite name and the spark plug plant. The ancillary injunctive provisions are also here for review. I Ford, the second-leading producer of automobiles, General Motors, and Chrysler together account for 90% of the automobile production in this country. Though Ford makes a substantial portion of its parts, prior to its acquisition of the assets of Autolite it did not make spark plugs or batteries but purchased those parts from independent companies. The original equipment of new cars, insofar as spark plugs are concerned, is conveniently referred to as the OE tie. The replacement market is referred to as the aftermarket. The independents, including Autolite, furnished the auto manufacturers with OE plugs at cost or less, about six cents a plug, and they continued to sell at that price even when their costs increased threefold. The independents sought to recover their losses on OE sales by profitable sales in the aftermarket where the requirement of each vehicle during its lifetime is about five replacement plug sets. By custom and practice among mechanics, the aftermarket plug is usually the same brand as the OE plug. See generally Hansen & Smith, The Champion Case: What Is Competition?, 29 Harv. Bus. Rev. 89 (1951). Ford was anxious to participate in this aftermarket and, after various efforts not relevant to the present case, concluded that its effective participation in the aftermarket *566 required "an established distribution system with a recognized brand name, a full line of high volume service parts, engineering experience in replacement designs, low volume production facilities and experience, and the opportunity to capitalize on an established car population." Ford concluded it could develop such a division of its own but decided that course would take from five to eight years and be more costly than an acquisition. To make a long story short, it acquired certain assets of Autolite in 1961. General Motors had previously entered the spark plug manufacturing field, making the AC brand. The two other major domestic producers were independents Autolite and Champion. When Ford acquired Autolite, whose share of the domestic spark plug market was about 15%, only one major independent was left and that was Champion, whose share of the domestic market declined from just under 50% in 1960 to just under 40% in 1964 and to about 33% in 1966. At the time of the acquisition, General Motors' market share was about 30%. There were other small manufacturers of spark plugs but they had no important share of the market.[3] The District Court held that the acquisition of Autolite violated 7 of the Celler-Kefauver Antimerger Act *567 because its effect "may be substantially to lessen competition."[4] It gave two reasons for its decision. First, prior to 1961 when Ford acquired Autolite it had a "pervasive impact on the aftermarket," in that it was a moderating influence on Champion and on other companies derivatively. It explained that reason as follows: "An interested firm on the outside has a twofold significance. It may someday go in and set the stage for noticeable deconcentration. While it merely stays near the edge, it is a deterrent to current competitors. United This was Ford uniquely, as both a prime candidate to manufacture and the major customer of the dominant member of the oligopoly. Given the chance that Autolite would have been doomed to oblivion by defendant's grassroots entry, which also would have destroyed Ford's soothing influence over replacement prices, Ford may well have been more useful as a potential than it *568 would have been as a real producer, regardless how it began fabrication. Had Ford taken the internal-expansion route, there would have been no illegality; not, however, because the result necessarily would have been commendable, but simply because that course has not been proscribed." See also ; United Second, the District Court found that the acquisition marked "the foreclosure of Ford as a purchaser of about ten per cent of total industry output." The District Court added: "In short, Ford's entry into the spark plug market by means of the acquisition of the factory in Fostoria and the trade name `Autolite' had the effect of raising the barriers to entry into that market as well as removing one of the existing restraints upon the actions of those in the business of manufacturing spark plugs. "It will also be noted that the number of competitors in the spark plug manufacturing industry closely parallels the number of competitors in the automobile manufacturing industry and the barriers to entry into the auto industry are virtually insurmountable at present and will remain so for the foreseeable future. Ford's acquisition of the Autolite assets, particularly when viewed in the context of the original equipment (OE) tie and of GM's ownership of AC, has the result of transmitting the rigidity of the oligopolistic structure of the automobile industry to the spark plug industry, thus reducing the chances of future deconcentration of the spark plug market by forces at work within that market." *569 See also ; Brown Shoe ; United We see no answer to that conclusion if the letter and spirit of the Celler-Kefauver Antimerger Act[5] are to be honored. See United ; United -171; Brown Shoe -323. It is argued, however, that the acquisition had some beneficial effect in making Autolite a more vigorous and *570 effective competitor against Champion and General Motors than Autolite had been as an independent. But what we said in United disposes of that argument. A merger is not saved from illegality under 7, we said, "because, on some ultimate reckoning of social or economic debits and credits, it may be deemed beneficial. A value choice of such magnitude is beyond the ordinary limits of judicial competence, and in any event has been made for us already, by Congress when it enacted the amended 7. Congress determined to preserve our traditionally competitive economy. It therefore proscribed anticompetitive mergers, the benign and the malignant alike, fully aware, we must assume, that some price might have to be paid." Ford argues that the acquisition left the marketplace with a greater number of competitors. To be sure, after Autolite sold its New Fostoria plant to Ford, it constructed another in Decatur, Alabama, which by 1964 had 1.6% of the domestic business. Prior to the acquisition, however, there were only two major independent producers and only two significant purchasers of original equipment spark plugs. The acquisition thus aggravated an already oligopolistic market. As we indicated in Brown Shoe -324: "The primary vice of a vertical merger or other arrangement tying a customer to a supplier is that, by foreclosing the competitors of either party from a segment of the market otherwise open to them, the arrangement may act as a `clog on competition,' Standard Oil of California v. United which `deprive[s] rivals of a fair opportunity to compete.' H. R. Rep. No. 1191, *571 81st Cong., 1st Sess. 8. Every extended vertical arrangement by its very nature, for at least a time, denies to competitors of the supplier the opportunity to compete for part or all of the trade of the customer-party to the vertical arrangement." Moreover, Ford made the acquisition in order to obtain a foothold in the aftermarket. Once established, it would have every incentive to perpetuate the OE tie and thus maintain the virtually insurmountable barriers to entry to the aftermarket. II The main controversy here has been over the nature and degree of the relief to be afforded. During the year following the District Court's finding of a 7 violation, the parties were unable to agree upon appropriate relief. The District Court then held nine days of hearings on the remedy and, after full consideration, concluded that divestiture and other relief were necessary. The OE tie, it held, was in many respects the key to the solution since the propensity of the mechanic in a service station or independent garage is to select as a replacement the spark plug brand that the manufacturer installed in the car. The oligopolistic structure of the spark plug manufacturing industry encourages the continuance of that system. Neither GM nor Autolite sells private-label plugs. It is obviously in the self-interest of OE plug manufacturers to discourage private-brand sales and to encourage the OE tie. There are findings that the private-brand sector of the spark plug market will grow substantially in the next decade because mass merchandisers are entering this market in force. They not only sell all brands over the counter but also have service bays where many carry only spark plugs of their own proprietary brand. It is anticipated that by 1980 *572 the total private brand portion of the spark plug market may then represent 17% of the total aftermarket. The District Court added: "To the extent that the spark [plug] manufacturers are not owned by the auto makers, it seems clear that they will be more favorably disposed toward private brand sales and will compete more vigorously for such sales. Also, the potential entrant continues to have the chance to sell not only the private brand customer but the auto maker as well." Accordingly the decree (1) enjoined Ford for 10 years from manufacturing spark plugs, (2) ordered Ford for five years to purchase one-half of its total annual requirement of spark plugs from the divested plant under the "Autolite" name, (3) prohibited Ford for the same period from using its own trade names on plugs, (4) protected New Fostoria, the town where the Autolite plant is located, by requiring Ford to continue for 10 years its policy of selling spark plugs to its dealers at prices no less than its prevailing minimum suggested jobbers' selling price,[6] (5) protected employees of the New Fostoria plant by ordering Ford to condition its divestiture sale on the purchaser's assuming the existing wage and pension obligations and to offer employment to any employee displaced by a transfer of nonplug operations from the divested plant.[7] *573 The relief in an antitrust case must be "effective to redress the violations" and "to restore competition."[8]United The District Court is clothed with "large discretion" to fit the decree to the special needs of the individual case. International Salt ; United ; United v. Crescent Amusement Complete divestiture is particularly appropriate where asset or stock acquisitions violate the antitrust laws. United ; United v. Crescent Amusement ; Schine Chain Theatres v. United ; United v. El Paso Gas Divestiture is a start toward restoring the pre-acquisition situation. Ford once again will then stand as a large industry customer at the edge of the market with *574 a renewed interest in securing favorable terms for its substantial plug purchases. Since Ford will again be a purchaser, it is expected that the competitive pressures that existed among other spark plug producers to sell to Ford will be re-created. The divestiture should also eliminate the anticompetitive consequences in the aftermarket flowing from the second largest automobile manufacturer's entry through acquisition into the spark plug manufacturing business. The divested plant is given an incentive to provide Ford with terms which will not only satisfy the 50% requirement provided for five years by the decree but which even after that period may keep at least some of Ford's ongoing purchases. The divested plant is awarded at least a foothold in the lucrative aftermarket and is provided an incentive to compete aggressively for that market. As a result of the acquisition of Autolite, the structure of the spark plug industry changed drastically, as already noted. Ford, which before the acquisition was the largest purchaser of spark plugs from the independent manufacturers, became a major manufacturer. The result was to foreclose to the remaining independent spark plug manufacturers the substantial segment of the market previously open to competitive selling and to remove the significant procompetitive effects in the concentrated spark plug market that resulted from Ford's position on the edge of the market as a potential entrant. To permit Ford to retain the Autolite plant and name and to continue manufacturing spark plugs would perpetuate the anticompetitive effects of the acquisition.[9] *575 The District Court rightly concluded that only divestiture would correct the condition caused by the unlawful acquisition. A word should be said about the other injunctive provisions. They are designed to give the divested plant an opportunity to establish its competitive position. The divested company needs time so it can obtain a foothold in the industry. The relief ordered should "cure the ill effects of the illegal conduct, and assure the public freedom from its continuance," United v. United Gypsum and it necessarily must "fit the exigencies of the particular case." International Salt 332 U. S., at Moreover, "it is well settled that once the Government has successfully borne the considerable burden of establishing a violation of law, all doubts as to the remedy are to be resolved in its favor." United Ford concedes that "[i]f New Fostoria is to survive, it must for the foreseeable future become and remain the OE supplier to Ford and secure and retain the benefits of such OE status in sales of replacement plugs." The ancillary measures ordered by the District Court are designed to allow Autolite to re-establish itself in the OE and replacement markets and to maintain it as a viable competitor until such time as forces already at work within the marketplace weaken the OE tie. Thus Ford is prohibited for 10 years from manufacturing its own plugs.[10] But in five years it can buy its plugs from any source and use its name on OE plugs. *576 But prior to that time Ford cannot use or market plugs bearing the Ford trade name. In view of the importance of the OE tie, if Ford were permitted to use its own brand name during the initial five-year period, there would be a tendency to impose the oligopolistic structure of the automotive industry on the replacement parts market and the divested enterprise might well be unable to become a strong competitor. Ford argues that any prohibition against the use of its name is permissible only where the name deceives or confuses the public.[11] But this is not an unfair competition case. The temporary ban on the use of the Ford name is designed to restore the pre-acquisition competitive structure of the market. The requirement that, for five years, Ford purchase at *577 least half of its spark plug requirements from the divested company under the Autolite label is to give the divested enterprise an assured customer while it struggles to be re-established as an effective, independent competitor. It is suggested, however, that "the District Court's orders assured that Ford could not begin to have brand name success in the replacement market for at least 10 to 13 years." Post, at 591. This conclusion distorts the effect of the District Court decree and the nature of the spark plug industry. Ford's own studies indicate that it would take five to eight years for it to develop a spark plug division internally. A major portion of this period would be devoted to the development of a viable position in the aftermarket. The five-year prohibition on the use of its own name and the 10-year limitation on its own manufacturing mesh neatly to allow Ford to establish itself in the aftermarket prior to becoming a manufacturer while, at the same time, giving Autolite the opportunity to re-establish itself by providing a market for its production. Thus, the District Court's decree delays for only two to five years the date on which Ford may become a manufacturer with an established share of the aftermarket. Given the normal five-to-eight-year lead time on entry through internal expansion, the District Court's decree does not significantly lessen Ford's moderating influence as a potential entrant on the edge of the market. Moreover, in light of the interim benefits this ancillary relief will have on the re-establishment of Autolite as a viable competitor and of Ford as a major purchaser, we cannot agree with the characterization of the relief as "harshly restrictive," post, at 595, or the assertion that the decree, in any practical and significant sense, "prohibit[s] Ford from entering the market through internal expansion." Post, at 592. Antitrust relief should unfetter a market from anti-competitive conduct and "pry open to competition a *578 market that has been closed by defendants' illegal restraints." International Salt 332 U. S., at The temporary elimination of Ford as a manufacturer of spark plugs lowers a major barrier to entry to this industry. See C. Kaysen & D. Turner, Antitrust PolicyAn Economic and Legal Analysis 116 (1959). Forces now at work in the marketplace may bring about a deconcentrated market structure and may weaken the onerous OE tie. The District Court concluded that the forces of competition must be nurtured to correct for Ford's illegal acquisition. We view its decree as a means to that end.[12] The thorough and thoughtful way the District Court considered all aspects of this case, including the nature of the relief, is commendable. The drafting of such a decree involves predictions and assumptions concerning future economic and business events. Both public and private interests are involved; and we conclude that the District Court with a single eye to the requirements of 7 and the violation that was clearly established made a reasonable judgment on the means needed to restore and encourage the competition adversely affected by the acquisition. Affirmed. MR. JUSTICE POWELL and MR. JUSTICE REHNQUIST took no part in the consideration or decision of this case. *579 MR. JUSTICE STEWART, concurring in the result. The spark plug industry as it stood prior to Ford's acquisition of Autolite was hardly characterized by vigorous competition. For 25 years, the industry had consisted of AC, owned by and supplying original equipment (OE) plugs to General Motors; Champion, independent and supplying Ford; Autolite, independent and supplying Chrysler; and a number of small producers who had no OE sales and only a minuscule share of the aftermarket.[1] The habit among mechanics of installing replacement plugs carrying the same brand as the automobile's original plugs, reinforced by the unwillingness of service stations to stock more than two or three brands,[2] made possible the "OE tie," which rendered any large-scale entry into the aftermarket virtually impossible without first obtaining a large OE customer. Moreover, price competition was minimal, both in the OE market (where any reduction in the six-cent price would immediately be matched by rivals), and in the aftermarket (where spark plugs accounted for such a small percentage of the normal tuneup charge that price differentials did not have a significant impact upon consumer choice). The District Court found that the acquisition of Autolite's spark plug assets by Ford further lessened competition in the industry in two ways: it foreclosed Ford as a potential purchaser of spark plugs from independent producers, and it eliminated what the District Court found to have been Ford's "moderating effect" upon Champion's pricing policies in the aftermarket. These *580 findings standing alone might provide a basis for concluding that the acquisition violated 7, but, as THE CHIEF JUSTICE demonstrates in his dissenting opinion, post, at 591-592, the remedy ordered will not restore the preacquisition market forces upon which the District Court focused. For, under the court's injunctions, Ford will be neither a potential market entrant, nor a potential purchaser of half its OE requirements from producers other than Autolite, for a substantial period of time after the divestiture takes place. In my judgment, both the finding of a 7 violation and the remedy ordered may be better rationalized in terms of probable future trends in the spark plug market, visible at the time of the acquisition. The District Court observed that "a court cannot shut its eyes to contemporary or predictable factors conducive to change in the competitive structure." This was a proper inquiry because we have held that 7 "requires not merely an appraisal of the immediate impact of the merger upon competition, but a prediction of its impact upon competitive conditions in the future." United[3] *581 The District Court found that the growth of service-centers operated by mass merchandisers carrying private label brands might eventually loosen the OE tie and the tight oligopoly in the spark plug market that it had fostered. Had Ford entered the market through internal expansion, either Champion or Autolite would have been left without an OE entry, but would nevertheless have owned an established brand name with an existing distribution system, together with a large production capacity. Even the threat of being so stranded, not to mention its realization, would have given both Champion and Autolite an incentive to compete as suppliers to private label sellers, as these sellers began to represent a significant share of the market, and to undermine the OE tie. Ford's acquisition of Autolite did more than foreclose it as a potential OE customer, or eliminate its "moderating effect" upon Champion's pricing policies: it eliminated one of the only two independent producers with a sufficient share of the aftermarket to give it a chance to compete effectively without an OE tie. Thus, the acquisition had the probable effect of indefinitely postponing the day when existing market forces could produce a measurable deconcentration in the market. While the District Court did not justify the divestiture in precisely these terms, I think its prediction of future trends in the spark plug industry is an adequate basis to support the remedy ordered. THE CHIEF JUSTICE'S opinion, post, at 591-592, is correct in its assertion that the ancillary injunctions are anticompetitive in the short run, and that the District Court took extraordinary measures to mother the divested producer for the next decade. But I cannot say that these injunctions are not reasonably calculated to establish the new Autolite producer as a viable firm and thus to restore the pre-acquisition market structure, insofar as it is now possible to do so. A divestiture decree *582 without ancillary injunctions would not automatically restore the status quo ante, as THE CHIEF JUSTICE'S opinion seems to assume. The Electric Autolite Company, from which Ford acquired the assets in question here, will not be recreated by the divestiture, and it is reasonable to assume that a new owner of the Autolite trade name and the New Fostoria plant will require a period of time to become as effective a competitor as was Electric Autolite prior to the acquisition. Though the economics of the market are such that the divestiture cannot be assured of success, it does at least have a chance of bringing increased competition to the spark plug industry. And while divestiture remedies in 7 cases have not enjoyed spectacular success in the past, remedies short of divestiture have been uniformly unsuccessful in meeting the goals of the Act. See Elzinga, The Antimerger Law: Pyrrhic Victories, 12 J. Law & Econ. 43 (1969). MR. CHIEF JUSTICE BURGER, concurring in part and dissenting in part. In addition to requiring divestiture of Autolite, the District Court made ancillary injunctive provisions that go far beyond any that have been cited to the Court. Ford is forbidden to manufacture spark plugs for 10 years; Ford is ordered to purchase one-half of its total annual requirement of spark plugs from the divested company under the "Autolite" name, and Ford is forbidden for the same period to use its own trade name on any spark plugs. These provisions are directed to prevent Ford from making an independent entry into the spark plug market and, in effect, to require it to subsidize Autolite for a period of time. Despite the Draconian quality of this restriction on Ford, I can find no justification in the District Court's findings for this *583 remedy. I dissent from the broad sweep of the District Court's remedial decree. I would remand for further consideration of the remedial aspects of this case. An understanding of the District Court's findings as to the spark plug market shows three reasons why it was in error in requiring Ford to support Autolite. First, the court did not find that the weakness of an independent Autolite's competitive position resulted from Ford's acquisition. Rather, a reading of its findings makes apparent that the precariousness of Autolite's expected post-divestment position results from pre-existing forces in the market. Therefore, the drastic measures employed to strengthen Autolite's position at Ford's expense cannot be justified as a remedy for any wrong done by Ford. Second, the remedy will perpetuate for a time the very evils upon which the District Court based a finding of an antitrust violation. Third, the court's own findings indicate that the remedy is not likely to secure Autolite's competitive position beyond the termination of the restrictions. Therefore, there is no assurance that the judicial remedy will have the desired impact on long-run competition in the spark plug market. The Court makes two critical errors in order to avoid the effect of this reasoning. It rejects the factfinding by the District Court in order to uphold its remedial order; and it repeats that court's error by discussing the assistance necessary to restore Autolite to the status quo ante without ever delineating that prior state of affairs or indicating how Ford, by acquiring Autolite and holding it for a number of years, had undermined its ability to reassume its former independent competitive position. The District Court made extensive findings on the nature of the spark plug market. Some of these findings appear in the Court's opinion, but some factors that *584 seem crucial to me are either omitted or not adequately set forth. Therefore I will sketch these findings at some risk of repetition. Beyond doubt, the spark plug market has been overwhelmingly dominated by three manufacturers for a long period: AC, owned by General Motors, which had about 30% of the market in 1961; Champion, which had supplied Ford since 1910 and had approximately 50% of the market in 1961; and Autolite, which had supplied Chrysler since 1941 and had 15% of the market in 1961. Together these three companies had over 95% of the total market in 1961. The reason for the continued domination of the market by the three big plug manufacturers is the pervasive feature of the plug market known as the "OE (original equipment) tie." This denominates the phenomenon that mechanics who replace spark plugs in a car engine have tended, almost exclusively, to use the brand of plug installed by the auto builder as original equipment. Though not required by spark plug technology, mechanics have followed this practice because of a strong desire to avoid any chance of injuring an engine by putting a mismatched plug into it. Further, because plugs are low-profit items, those who install them tend to carry an inventory of a small number of brands. Most carry only two and some carry three brands, and they choose the brands installed by the big auto manufacturers as original equipment. Thus, it takes a position as supplier to a large auto maker to gain recognition in the spark plug replacement market. The Government conceded in the District Court, for instance, that American Motors, with 5% of the auto market, would not be able to create market acceptance for an independent brand of plug by installing it as original equipment in its cars. Because of the competitive importance of having their plugs installed as original equipment by one of the three *585 auto companies, plug manufacturers have over a long period been willing to sell OE plugs for initial installation by auto manufacturers at a price below their production cost. The longstanding price for OE plugs, about 6 cents, is now approximately one-third of the cost of producing these plugs. Such below-cost selling is profitable for the plug companies because of the foothold it gives them in competing for the normal five or six sets of replacement plugs necessary in the lifespan of an automobile. This pricing policy has been partially responsible for the semipermanent relations between the plug manufacturers and the auto manufacturers: it is only those plug companies that profit from the OE tie over the long run that can afford this below-cost sale to the auto companies. The strength of the OE tie is demonstrated by the inability of well-known auto supply manufacturers to gain a significant share of the spark plug market in the absence of an OE tie. As the District Court found, no company without the OE tie "ever surpassed the 2% level. Several have come and gone. Firestone Tire and Rubber Company merchandised `Firestone' replacements for 35 years before it gave up in 1964. Although it owned some 800 accessory stores and successfully wholesaled other items to more than 50,000 shops and filling stations, it could not surmount the patent discrimination against brands not blessed with Detroit's approbation. Goodyear Tire and Rubber Company quit in only three years. Globe Union, a fabricator which had barely 1% of the nation's shipments, withdrew in 1960." Two small manufacturers survive, producing plugs for private-label brands. Thus "Atlas" plugs, sponsored by *586 the Standard Oil companies, has 1.4% of the replacement market; "Prestolite" and Sears, Roebuck's "Allstate" each have 1.2%; and Montgomery Ward's "Riverside" label has 0.6% of the replacement market. An independent entry into the plug market by Ford, with the expected substitution of its own plugs as original equipment in its cars, would have necessarily deprived one of the two significant independent plug producers of its OE status. The District Court found that, because of the importance of the OE tie, the plug producer deprived of this support would most likely have lost any significant position in the market.[1] Autolite, with only 15% of the market before the acquisition, would certainly have lost any significant position in the market if an independent entry by Ford had led Chrysler to shift its patronage from Autolite to Champion. The District Court asserted that a Champion without OE status would have had some chance of maintaining a significant market position because of its size, although it gave no reason for thinking Champion's size immunized it from dependence on OE status. Before 1961, Champion had just under 50% of the market. As a result of Champion's move to Chrysler in 1961, its position in the market dropped to 33% by 1966. The District Court found no basis for predicting which of the two big independents would have won such a competition for continued OE status. Thus, an independent entry by Ford would not likely have increased the number of significant competitors in the spark plug market. Rather, it would simply have substituted Ford for one of the two significant independent manufacturers. The result of this expectation *587 is that the District Court did not base its finding of illegality on the ground typically present when a potential entrant enters an oligopolistic market by acquisition rather than internal expansion, i. e., that such a move has deprived the market of the pro-competitive effect of an increase in the number of competitors. Here an independent entry would not have increased the number of competitors but simply would have exchanged one competitor for another. In noting this paradoxical fact, the District Court concluded that "Ford may well have been more useful as a potential than it would have been as a real producer, regardless how it began fabrication."[2] Not finding that Ford's entry by acquisition had deprived the spark plug market of any pro-competitive effect of an independent entry, the District Court relied on two other grounds for finding a violation of the antitrust laws. First, it concluded that as a potential entrant on the edge of the market which was also a major purchaser in the market, Ford exercised a "moderating" influence on the market; the second basis for determining the acquisition illegal was the finding that the acquisition *5 "foreclosed" other companies from competing for the business of supplying Ford with spark plugs. With respect to Autolite itself, the District Court made several relevant findings. First, it found that Autolite is a fixed-production plant. In other words, it can be profitable only turning out approximately the number of plugs it now manufactures. It could not, for instance, reduce its production by half and sell that at a profit. Second, it made extensive findings with respect to Autolite's distribution system: "Ford received six regional offices, personnel and a list of Electric Autolite's warehousers and jobbers. All of these have been and still are at liberty to deal with anyone they wish. Each old direct account had to be visited individually and, if it consented, be re-signed by defendant [Ford]. Within a few months, 52 did enter into new ignition contracts. However, 50 of these for the previous year had also been [distributors of other Ford products]. By mid-1966, direct accounts totaled 156, of which 104 in 1960 had been pledged to neither Ford nor Autolite. The same bloc of 50 had been committed to both. The net increase traceable with any semblance of accuracy to the acquisition is two first-layer middlemen" As to difficulties that a divested Autolite might have in establishing an independent distribution system, the District Court mentioned only one:[3] if Ford were to offer its own plugs to its car dealers at a fairly low price, one which independent jobbers could not meet, Autolite *589 would have difficulty independently establishing its distribution system. The jobbers would be less interested in handling Autolite's line since the Ford dealers would not want Autolite at the jobbers' price and, with this demand cut out, the jobbers would be less interested in pushing Autolite generally. There is another set of relevant facts found by the District Court. The District Judge found that "there is a rising wind of new forces in the spark plug market which may profoundly change it." On the basis of the testimony of an executive of one of the producers of plugs for private labels, the court found that the private-brand sector would grow during the next 10 years. This highly speculative observation of the District Court was based on a finding that the mass merchandisers are beginning to enter the plug marketing field in force. Not only do the mass merchandisers market private-brand plugs over the counter, but they are also building service bays. And in these bays many carry only their own proprietary brand of spark plugs. This witness predicted that the mass merchandisers would increase their share of the aftermarket from 4.4% to 10% by 1980. He further predicted that oil companies would enter the replacement market, resulting in a total of 17% of the replacement market being supplied by private-label plugs by 1980. The court concluded that these forces "may well lead to [the market's] eventual deconcentration by increasing the number of potential customers for a new entrant into the plug manufacturing business and reducing the need for original equipment identification." In its separate opinion on remedies, the District Court correctly stated the relevant law; the purpose, and limit of antitrust remedies, is to "free these forces [within the market] from the unlawful restraint imposed upon them so that they *590 may run their natural course." 315 F. Supp., at The violators may not be required to do more than return the market to the status quo ante. See United v. Paramount Pictures, Inc., ; Reynolds Metals v. FTC, 114 U. S. App. D. C. 2, Applying this general provision to the instant situation, the District Court correctly stated: "The court wishes to note here that although it finds that divestiture is the only effective remedy, it does not agree with the Government that the remedy should be affirmatively designed to `break the OE tie.' The remedy is designed to correct the violations of Section 7 found by the court. The OE tie, as such, does not violate Section 7." The District Court then concluded that, in addition to divestiture of the Autolite plant and trade name, certain injunctive provisions were required "to give [Autolite] an opportunity to establish its competitive position." It therefore ordered that Ford be prohibited from manufacturing spark plugs for a period of 10 years. It further ordered that for a period of five years Ford would be required to purchase one-half of its total annual needs of spark plugs from Autolite, bearing the Autolite label. For this five-year period Ford was also ordered not to use or market a spark plug under a trade name owned by or licensed to it. The effect of these orders was twofold. They assured Autolite of a purchaser for a large part of its production for five years. And they prevented Ford from immediately entering the competition for a share of the aftermarket with a plug under its own name; it could not even label a plug under its own name for five years and could not manufacture its own plug for 10 years. *591 Given the findings of the court that even with the status of supplier of original equipment (with the company's own brand name on plugs) to a major auto manufacturer it would take a new entrant into the spark plug market five to eight years to establish a position for its brand in the replacement market, the District Court's orders assured that Ford could not begin to have brand-name success in the replacement market for at least 10 to 13 years.[4] In my view these drastic remedial provisions are not warranted by the court's findings as to the grounds on which Ford's acquisition violated the antitrust laws. Further, in light of the District Court's own factfindings, these remedies will have short run anticompetitive impact and they give no assurance that they will succeed in allowing Autolite to establish its competitive position. The remedial provisions are unrelated to restoring the status quo ante with respect to the two violations found by the District Court, the ending of Ford's status as a potential entrant with a moderating influence on the market and the foreclosure of a significant part of the plug market. Indeed, the remedies may well be anticompetitive in both respects. First, the District Court's order actually undercuts the moderating influence of Ford's position on the edge of the market. It is the *592 possibility that a company on the sidelines will enter a market through internal expansion that has a moderating influence on the market. By prohibiting Ford from entering the market through internal expansion, therefore, the remedy order wipes out, for the duration of the restriction, the pro-competitive influence Ford had on the market prior to its acquisition of Autolite. Second, the Court's order does not fully undo the foreclosure effect of the acquisition. Divestment alone would return the parties to the status quo ante. Ford would then be free to deal with Autolite or another plug producer or to enter the market through internal expansion. Yet the Court has ordered Ford to buy at least half its requirements from Autolite for five years. Thus, the order itself forecloses part of Ford's needs from the forces of competition. The above problems might be minor if the District Court's remedy were justifiable in terms of returning Autolite to the status quo ante by overcoming some harm to its ability to compete accomplished by Ford's acquisition. But on this issue the District Court opinion and the majority of this Court are confused. Although the District Court asserted that Autolite needed the aid of its injunctive remedies to establish its competitive position, the court made no findings in its remedy opinion as to the source of Autolite's competitive weakness. Therefore it never reached the issue whether the source of weakness had anything to do with the violations attributed to Ford. Instead, the court's opinion proceeded from the recognition of competitive problems immediately to the prescription of a remedy. In fact, a fair reading of the findings of the District Court shows that the acquisition did not injure Autolite's competitive position. Autolite's OE status was continued and its share of the aftermarket was increased from 12.5% to 19%. Thus, its trademark is at least as strong now as when Ford acquired the company. Nor *593 did the acquisition and holding of Autolite injure its distribution system. The District Court found that Autolite did not own a distribution system. It merely had short-term contracts with jobbers who distributed its plugs to those who install them in cars or sell them to the public. Almost all of these jobbers had concurrent distribution relations with Ford. In fact, between 1961 and 1966 Ford tripled the number of jobbers handling Autolite plugs. From the opinion below, it appears that Ford has done nothing that will prevent an independent Autolite from seeking to maintain these distribution channels. The only possible finding of injury to be squeezed out of the acquisition relates to the fact that Autolite has been shorn of its status as OE supplier of Chrysler. But this is inconclusive. Autolite had nothing more in its position as OE supplier to Chrysler than it would if Ford voluntarily chose to use Autolite plugs after the divestment: a relationship based on short-term contracts the auto manufacturer could refuse to renew at any time. The findings of the District Court indicate that Autolite's precarious position did not result from its acquisition by Ford. Prior to the acquisition both Champion and Autolite were in a continually precarious position in that their continued large share of the market was totally dependent on their positions as OE suppliers to auto manufacturers. The very factor that assured that they faced no serious competition in the short run also assured that in the long run their own position was dependent on their relationship with a large auto manufacturer. Thus, the threat to Autolite posed by a simple divestiture is the same threat it had lived with between 1941 and 1961 as an independent entity: it might be left without any OE supply relationship with a major auto manufacturer, and therefore its market position based on this relationship might decline drastically. *594 Today's opinion errs when it states, ante, at 571, that the District Judge found the OE tie the "key to the solution" of this problem. Although the court indeed found this tie a pervasive factor in the market, it also found that the phenomenon was not created by Ford and that it did not constitute a 7 violation. Therefore the Court errs in justifying the ancillary remedies as necessary to overcome the OE tie. Even if such a remedy might overcome the OE tie, which I question, there is no justification for burdening Ford with the restrictive order. Further, the only conclusion to be drawn from the trial findings is that the remedy is unlikely to result in a secure market position for Autolite at the end of the restricted period. Once again it will be dependent for its survival on whether it can maintain an OE supply status. The District Court's suggestion that Autolite can find a niche supplying private-brand labels is unpersuasive. It cannot be predicted with any certainty that these sales outlets will grow to the extent predicted by one person in that line of the business. Further, even if they do, this is no assurance of Autolite's survival. There are already several companies in the business of producing plugs for private labels. Autolite will have to compete with them. The results will not be helpful. One possibility is that Autolite would completely monopolize the private-brand market to the extent of about 17% of the replacement market. This is as uncompetitive as it is unlikely. The more reasonable likelihood is that Autolite might be able to gain a position producing, for instance, 5% of the replacement market plugs. But this would be useless because the District Court's findings make clear that Autolite's fixed-production plant cannot supply such a small share of the market at a profit. In the final analysis it appears to me that the District Court, seeing the immediate precariousness of Autolite's *595 position as a divested entity, designed remedies to support Autolite without contemplating whether it was equitable to restrict Ford's freedom of action for these purposes or whether there was any real chance of Autolite's eventual survival. I fear that this is a situation where the form of preserving competition has taken precedence over an understanding of the realities of the particular market. Therefore I dissent from today's affirmance of the District Court's harshly restrictive remedial provisions.[5] MR. JUSTICE BLACKMUN, concurring in part and dissenting in part. I concur in Part I of the Court's opinion and in that portion of Part II that approves divestiture as part of the remedy. I cannot agree, however, that prohibiting Ford from using its own name or its trade name on any spark plugs for five years and enjoining it entirely from manufacturing plugs for 10 years is just, equitable, or necessary. Instead, the stringency of those remedial provisions strikes me as confiscatory and punitive. The Court's opinion, ante, at 566, recognizes that Ford could develop its own spark plug division internally and place itself in the same position General Motors has occupied for so long, but that this would take from five to eight years. The restraint on Ford's entering the spark plug area is thus for a period longer than it would take Ford to achieve a position in the market through internal development. And to deny it the use of its own name is to deny it a property right that has little to do with this litigation. |
Justice O'Connor | majority | false | United States v. Place | 1983-06-20T00:00:00 | null | https://www.courtlistener.com/opinion/110979/united-states-v-place/ | https://www.courtlistener.com/api/rest/v3/clusters/110979/ | 1,983 | 1982-123 | 2 | 9 | 0 | This case presents the issue whether the Fourth Amendment prohibits law enforcement authorities from temporarily *698 detaining personal luggage for exposure to a trained narcotics detection dog on the basis of reasonable suspicion that the luggage contains narcotics. Given the enforcement problems associated with the detection of narcotics trafficking and the minimal intrusion that a properly limited detention would entail, we conclude that the Fourth Amendment does not prohibit such a detention. On the facts of this case, however, we hold that the police conduct exceeded the bounds of a permissible investigative detention of the luggage.
I
Respondent Raymond J. Place's behavior aroused the suspicions of law enforcement officers as he waited in line at the Miami International Airport to purchase a ticket to New York's La Guardia Airport. As Place proceeded to the gate for his flight, the agents approached him and requested his airline ticket and some identification. Place complied with the request and consented to a search of the two suitcases he had checked. Because his flight was about to depart, however, the agents decided not to search the luggage.
Prompted by Place's parting remark that he had recognized that they were police, the agents inspected the address tags on the checked luggage and noted discrepancies in the two street addresses. Further investigation revealed that neither address existed and that the telephone number Place had given the airline belonged to a third address on the same street. On the basis of their encounter with Place and this information, the Miami agents called Drug Enforcement Administration (DEA) authorities in New York to relay their information about Place.
Two DEA agents waited for Place at the arrival gate at La Guardia Airport in New York. There again, his behavior aroused the suspicion of the agents. After he had claimed his two bags and called a limousine, the agents decided to approach him. They identified themselves as federal narcotics agents, to which Place responded that he knew they were "cops" and had spotted them as soon as he had deplaned. *699 One of the agents informed Place that, based on their own observations and information obtained from the Miami authorities, they believed that he might be carrying narcotics. After identifying the bags as belonging to him, Place stated that a number of police at the Miami Airport had surrounded him and searched his baggage. The agents responded that their information was to the contrary. The agents requested and received identification from Place a New Jersey driver's license, on which the agents later ran a computer check that disclosed no offenses, and his airline ticket receipt. When Place refused to consent to a search of his luggage, one of the agents told him that they were going to take the luggage to a federal judge to try to obtain a search warrant and that Place was free to accompany them. Place declined, but obtained from one of the agents telephone numbers at which the agents could be reached.
The agents then took the bags to Kennedy Airport, where they subjected the bags to a "sniff test" by a trained narcotics detection dog. The dog reacted positively to the smaller of the two bags but ambiguously to the larger bag. Approximately 90 minutes had elapsed since the seizure of respondent's luggage. Because it was late on a Friday afternoon, the agents retained the luggage until Monday morning, when they secured a search warrant from a Magistrate for the smaller bag. Upon opening that bag, the agents discovered 1,125 grams of cocaine.
Place was indicted for possession of cocaine with intent to distribute in violation of 21 U.S. C. § 841(a)(1). In the District Court, Place moved to suppress the contents of the luggage seized from him at La Guardia Airport, claiming that the warrantless seizure of the luggage violated his Fourth Amendment rights.[1] The District Court denied the motion. *700 Applying the standard of Terry v. Ohio, 392 U.S. 1 (1968), to the detention of personal property, it concluded that detention of the bags could be justified if based on reasonable suspicion to believe that the bags contained narcotics. Finding reasonable suspicion, the District Court held that Place's Fourth Amendment rights were not violated by seizure of the bags by the DEA agents. 498 F. Supp. 1217, 1228 (EDNY 1980). Place pleaded guilty to the possession charge, reserving the right to appeal the denial of his motion to suppress.
On appeal of the conviction, the United States Court of Appeals for the Second Circuit reversed. 660 F.2d 44 (1981). The majority assumed both that Terry principles could be applied to justify a warrantless seizure of baggage on less than probable cause and that reasonable suspicion existed to justify the investigatory stop of Place. The majority concluded, however, that the prolonged seizure of Place's baggage exceeded the permissible limits of a Terry-type investigative stop and consequently amounted to a seizure without probable cause in violation of the Fourth Amendment.
We granted certiorari, 457 U.S. 1104 (1982), and now affirm.
II
The Fourth Amendment protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." (Emphasis added.) Although in the context of personal property, and particularly containers, the Fourth Amendment challenge is *701 typically to the subsequent search of the container rather than to its initial seizure by the authorities, our cases reveal some general principles regarding seizures. In the ordinary case, the Court has viewed a seizure of personal property as per se unreasonable within the meaning of the Fourth Amendment unless it is accomplished pursuant to a judicial warrant issued upon probable cause and particularly describing the items to be seized.[2] See, e. g., Marron v. United States, 275 U.S. 192, 196 (1927). Where law enforcement authorities have probable cause to believe that a container holds contraband or evidence of a crime, but have not secured a warrant, the Court has interpreted the Amendment to permit seizure of the property, pending issuance of a warrant to examine its contents, if the exigencies of the circumstances demand it or some other recognized exception to the warrant requirement is present. See, e. g., Arkansas v. Sanders, 442 U.S. 753, 761 (1979); United States v. Chadwick, 433 U.S. 1 (1977); Coolidge v. New Hampshire, 403 U.S. 443 (1971).[3] For example, "objects such as weapons or contraband found in a public place may be seized by the police without a warrant," Payton v. New York, 445 U.S. 573, 587 (1980), because, under these circumstances, the risk of the item's disappearance or use for its intended purpose before a *702 warrant may be obtained outweighs the interest in possession. See also G. M. Leasing Corp. v. United States, 429 U.S. 338, 354 (1977).
In this case, the Government asks us to recognize the reasonableness under the Fourth Amendment of warrantless seizures of personal luggage from the custody of the owner on the basis of less than probable cause, for the purpose of pursuing a limited course of investigation, short of opening the luggage, that would quickly confirm or dispel the authorities' suspicion. Specifically, we are asked to apply the principles of Terry v. Ohio, supra, to permit such seizures on the basis of reasonable, articulable suspicion, premised on objective facts, that the luggage contains contraband or evidence of a crime. In our view, such application is appropriate.
In Terry the Court first recognized "the narrow authority of police officers who suspect criminal activity to make limited intrusions on an individual's personal security based on less than probable cause." Michigan v. Summers, 452 U.S. 692, 698 (1981). In approving the limited search for weapons, or "frisk," of an individual the police reasonably believed to be armed and dangerous, the Court implicitly acknowledged the authority of the police to make a forcible stop of a person when the officer has reasonable, articulable suspicion that the person has been, is, or is about to be engaged in criminal activity. 392 U.S., at 22.[4] That implicit proposition was embraced openly in Adams v. Williams, 407 U.S. 143, 146 (1972), where the Court relied on Terry to hold that the police officer lawfully made a forcible stop of the suspect to investigate an informant's tip that the suspect was carrying *703 narcotics and a concealed weapon. See also Michigan v. Summers, supra (limited detention of occupants while authorities search premises pursuant to valid search warrant); United States v. Cortez, 449 U.S. 411 (1981) (stop near border of vehicle suspected of transporting illegal aliens); United States v. Brignoni-Ponce, 422 U.S. 873 (1975) (brief investigative stop near border for questioning about citizenship and immigration status).
The exception to the probable-cause requirement for limited seizures of the person recognized in Terry and its progeny rests on a balancing of the competing interests to determine the reasonableness of the type of seizure involved within the meaning of "the Fourth Amendment's general proscription against unreasonable searches and seizures." 392 U.S., at 20. We must balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion. When the nature and extent of the detention are minimally intrusive of the individual's Fourth Amendment interests, the opposing law enforcement interests can support a seizure based on less than probable cause.
We examine first the governmental interest offered as a justification for a brief seizure of luggage from the suspect's custody for the purpose of pursuing a limited course of investigation. The Government contends that, where the authorities possess specific and articulable facts warranting a reasonable belief that a traveler's luggage contains narcotics, the governmental interest in seizing the luggage briefly to pursue further investigation is substantial. We agree. As observed in United States v. Mendenhall, 446 U.S. 544, 561 (1980) (opinion of POWELL, J.), "[t]he public has a compelling interest in detecting those who would traffic in deadly drugs for personal profit."
Respondent suggests that, absent some special law enforcement interest such as officer safety, a generalized interest in law enforcement cannot justify an intrusion on an individual's Fourth Amendment interests in the absence of *704 probable cause. Our prior cases, however, do not support this proposition. In Terry, we described the governmental interests supporting the initial seizure of the person as "effective crime prevention and detection; it is this interest which underlies the recognition that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest." 392 U.S., at 22. Similarly, in Michigan v. Summers we identified three law enforcement interests that justified limited detention of the occupants of the premises during execution of a valid search warrant: "preventing flight in the event that incriminating evidence is found," "minimizing the risk of harm" both to the officers and the occupants, and "orderly completion of the search." 452 U.S., at 702-703. Cf. Florida v. Royer, 460 U.S. 491, 500 (1983) (plurality opinion) ("The predicate permitting seizures on suspicion short of probable cause is that law enforcement interests warrant a limited intrusion on the personal security of the suspect"). The test is whether those interests are sufficiently "substantial," 452 U.S., at 699, not whether they are independent of the interest in investigating crimes effectively and apprehending suspects. The context of a particular law enforcement practice, of course, may affect the determination whether a brief intrusion on Fourth Amendment interests on less than probable cause is essential to effective criminal investigation. Because of the inherently transient nature of drug courier activity at airports, allowing police to make brief investigative stops of persons at airports on reasonable suspicion of drug-trafficking substantially enhances the likelihood that police will be able to prevent the flow of narcotics into distribution channels.[5]
*705 Against this strong governmental interest, we must weigh the nature and extent of the intrusion upon the individual's Fourth Amendment rights when the police briefly detain luggage for limited investigative purposes. On this point, respondent Place urges that the rationale for a Terry stop of the person is wholly inapplicable to investigative detentions of personality. Specifically, the Terry exception to the probable-cause requirement is premised on the notion that a Terry-type stop of the person is substantially less intrusive of a person's liberty interests than a formal arrest. In the property context, however, Place urges, there are no degrees of intrusion. Once the owner's property is seized, the dispossession is absolute.
We disagree. The intrusion on possessory interests occasioned by a seizure of one's personal effects can vary both in its nature and extent. The seizure may be made after the owner has relinquished control of the property to a third party or, as here, from the immediate custody and control of the owner.[6] Moreover, the police may confine their investigation *706 to an on-the-spot inquiry for example, immediate exposure of the luggage to a trained narcotics detection dog[7] or transport the property to another location. Given the fact that seizures of property can vary in intrusiveness, some brief detentions of personal effects may be so minimally intrusive of Fourth Amendment interests that strong countervailing governmental interests will justify a seizure based only on specific articulable facts that the property contains contraband or evidence of a crime.
In sum, we conclude that when an officer's observations lead him reasonably to believe that a traveler is carrying luggage that contains narcotics, the principles of Terry and its progeny would permit the officer to detain the luggage briefly to investigate the circumstances that aroused his suspicion, provided that the investigative detention is properly limited in scope.
The purpose for which respondent's luggage was seized, of course, was to arrange its exposure to a narcotics detection dog. Obviously, if this investigative procedure is itself a search requiring probable cause, the initial seizure of respondent's luggage for the purpose of subjecting it to the sniff test no matter how brief could not be justified on less than probable cause. See Terry v. Ohio, 392 U. S., at 20; United States v. Cortez, 449 U. S., at 421; United States v. Brignoni-Ponce, 422 U. S., at 881-882; Adams v. Williams, 407 U. S., at 146.
The Fourth Amendment "protects people from unreasonable government intrusions into their legitimate expectations *707 of privacy." United States v. Chadwick, 433 U. S., at 7. We have affirmed that a person possesses a privacy interest in the contents of personal luggage that is protected by the Fourth Amendment. Id., at 13. A "canine sniff" by a well-trained narcotics detection dog, however, does not require opening the luggage. It does not expose noncontraband items that otherwise would remain hidden from public view, as does, for example, an officer's rummaging through the contents of the luggage. Thus, the manner in which information is obtained through this investigative technique is much less intrusive than a typical search. Moreover, the sniff discloses only the presence or absence of narcotics, a contraband item. Thus, despite the fact that the sniff tells the authorities something about the contents of the luggage, the information obtained is limited. This limited disclosure also ensures that the owner of the property is not subjected to the embarrassment and inconvenience entailed in less discriminate and more intrusive investigative methods.
In these respects, the canine sniff is sui generis. We are aware of no other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure. Therefore, we conclude that the particular course of investigation that the agents intended to pursue here exposure of respondent's luggage, which was located in a public place, to a trained canine did not constitute a "search" within the meaning of the Fourth Amendment.
III
There is no doubt that the agents made a "seizure" of Place's luggage for purposes of the Fourth Amendment when, following his refusal to consent to a search, the agent told Place that he was going to take the luggage to a federal judge to secure issuance of a warrant. As we observed in Terry, "[t]he manner in which the seizure . . . [was] conducted *708 is, of course, as vital a part of the inquiry as whether [it was] warranted at all." 392 U.S., at 28. We therefore examine whether the agents' conduct in this case was such as to place the seizure within the general rule requiring probable cause for a seizure or within Terry's exception to that rule.
At the outset, we must reject the Government's suggestion that the point at which probable cause for seizure of luggage from the person's presence becomes necessary is more distant than in the case of a Terry stop of the person himself. The premise of the Government's argument is that seizures of property are generally less intrusive than seizures of the person. While true in some circumstances, that premise is faulty on the facts we address in this case. The precise type of detention we confront here is seizure of personal luggage from the immediate possession of the suspect for the purpose of arranging exposure to a narcotics detection dog. Particularly in the case of detention of luggage within the traveler's immediate possession, the police conduct intrudes on both the suspect's possessory interest in his luggage as well as his liberty interest in proceeding with his itinerary. The person whose luggage is detained is technically still free to continue his travels or carry out other personal activities pending release of the luggage. Moreover, he is not subjected to the coercive atmosphere of a custodial confinement or to the public indignity of being personally detained. Nevertheless, such a seizure can effectively restrain the person since he is subjected to the possible disruption of his travel plans in order to remain with his luggage or to arrange for its return.[8] Therefore, when the police seize luggage from the *709 suspect's custody, we think the limitations applicable to investigative detentions of the person should define the permissible scope of an investigative detention of the person's luggage on less than probable cause. Under this standard, it is clear that the police conduct here exceeded the permissible limits of a Terry-type investigative stop.
The length of the detention of respondent's luggage alone precludes the conclusion that the seizure was reasonable in the absence of probable cause. Although we have recognized the reasonableness of seizures longer than the momentary ones involved in Terry, Adams, and Brignoni-Ponce, see Michigan v. Summers, 452 U.S. 692 (1981), the brevity of the invasion of the individual's Fourth Amendment interests is an important factor in determining whether the seizure is so minimally intrusive as to be justifiable on reasonable suspicion. Moreover, in assessing the effect of the length of the detention, we take into account whether the police diligently pursue their investigation. We note that here the New York agents knew the time of Place's scheduled arrival at La Guardia, had ample time to arrange for their additional investigation at that location, and thereby could have minimized the intrusion on respondent's Fourth Amendment interests.[9] Thus, although we decline to adopt any outside time limitation for a permissible Terry stop,[10] we have never *710 approved a seizure of the person for the prolonged 90-minute period involved here and cannot do so on the facts presented by this case. See Dunaway v. New York, 442 U.S. 200 (1979).
Although the 90-minute detention of respondent's luggage is sufficient to render the seizure unreasonable, the violation was exacerbated by the failure of the agents to accurately inform respondent of the place to which they were transporting his luggage, of the length of time he might be dispossessed, and of what arrangements would be made for return of the luggage if the investigation dispelled the suspicion. In short, we hold that the detention of respondent's luggage in this case went beyond the narrow authority possessed by police to detain briefly luggage reasonably suspected to contain narcotics.
IV
We conclude that, under all of the circumstances of this case, the seizure of respondent's luggage was unreasonable under the Fourth Amendment. Consequently, the evidence obtained from the subsequent search of his luggage was inadmissible, and Place's conviction must be reversed. The judgment of the Court of Appeals, accordingly, is affirmed.
It is so ordered.
JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, concurring in the result.
In this case, the Court of Appeals assumed both that the officers had the "reasonable suspicion" necessary to justify an "investigative" stop of respondent under Terry v. Ohio, 392 U.S. 1 (1968), and its progeny, and that the principles of Terry apply to seizures of property. See 660 F.2d 44, 50 (CA2 1981); ante, at 700. The court held simply that "the prolonged seizure of [respondent's] baggage went far beyond a mere investigative stop and amounted to a violation of his Fourth Amendment rights." 660 F.2d, at 50. See also id., *711 at 52, 53. I would affirm the Court of Appeals' judgment on this ground.
Instead of simply affirming on this ground and putting an end to the matter, the Court decides to reach, and purportedly to resolve, the constitutionality of the seizure of respondent's luggage on less than probable cause and the exposure of that luggage to a narcotics detection dog. See ante, at 706-707. Apparently, the Court finds itself unable to "resist the pull to decide the constitutional issues involved in this case on a broader basis than the record before [it] imperatively requires." Street v. New York, 394 U.S. 576, 581 (1969). Because the Court reaches issues unnecessary to its judgment and because I cannot subscribe to the Court's analysis of those issues, I concur only in the result.
I
I have had occasion twice in recent months to discuss the limited scope of the exception to the Fourth Amendment's probable-cause requirement created by Terry and its progeny. See Florida v. Royer, 460 U.S. 491, 509 (1983) (BRENNAN, J., concurring in result); Kolender v. Lawson, 461 U.S. 352, 362 (1983) (BRENNAN, J., concurring). Unfortunately, the unwarranted expansion of that exception which the Court endorses today forces me to elaborate on my previously expressed views.
In Terry the Court expressly declined to address "the constitutional propriety of an investigative `seizure' upon less than probable cause for purposes of `detention' and/or interrogation." 392 U.S., at 19, n. 16.[1] The Court was confronted *712 with "the quite narrow question" of "whether it is always unreasonable for a policeman to seize a person and subject him to a limited search for weapons unless there is probable cause for an arrest." Id., at 15. In addressing this question, the Court noted that it was dealing "with an entire rubric of police conduct necessarily swift action predicated upon the on-the-spot observations of the officer on the beat which historically has not been, and as a practical matter could not be, subjected to the warrant procedure." Id., at 20. As a result, the conduct involved in the case has to be "tested by the Fourth Amendment's general proscription against unreasonable searches and seizures." Ibid. (footnote omitted). The Court's inquiry into the "reasonableness" of the conduct at issue was based on a " `balancing [of] the need to search [or seize] against the invasion which the search [or seizure] entails.' " Id., at 21, quoting Camara v. Municipal Court, 387 U.S. 523, 537 (1967). The Court concluded that the officer's conduct was reasonable and stated its holding as follows:
"We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of *713 the outer clothing of such persons in an attempt to discover weapons which might be used to assault him." 392 U.S., at 30.
In Adams v. Williams, 407 U.S. 143 (1972), the Court relied on Terry to endorse "brief" investigative stops based on reasonable suspicion. 407 U.S., at 145-146. In this regard, the Court stated that "[a] brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time." Id., at 146. The weapons search upheld in Adams was very limited and was based on Terry's safety rationale. 407 U.S., at 146. The Court stated that the purpose of a "limited" weapons search "is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence. . . ." Ibid.
In United States v. Brignoni-Ponce, 422 U.S. 873 (1975), the Court relied on Terry and Adams in holding that "when an officer's observations lead him reasonably to suspect that a particular vehicle may contain aliens who are illegally in the country, he may stop the car briefly and investigate the circumstances that provoke suspicion." 422 U.S., at 881.[2] The Court based this relaxation of the traditional probable-cause requirement on the importance of the governmental interest in stemming the flow of illegal aliens, on the minimal intrusion of a brief stop, and on the absence of practical alternatives for policing the border. Ibid. The Court noted the limited holdings of Terry and Adams and while authorizing the police to "question the driver and passengers about their citizenship and immigration status, and . . . ask them to explain suspicious circumstances," the Court expressly stated that "any further detention or search must be based on consent or probable cause." 422 U.S., at 881-882. See also *714 Ybarra v. Illinois, 444 U.S. 85, 93 (1979) ("The Terry case created an exception to the requirement of probable cause, an exception whose `narrow scope' this Court `has been careful to maintain' " (footnote omitted)); Dunaway v. New York, 442 U.S. 200, 209-212 (1979) (discussing the narrow scope of Terry and its progeny).[3]
It is clear that Terry, and the cases that followed it, permit only brief investigative stops and extremely limited searches based on reasonable suspicion. They do not provide the police with a commission to employ whatever investigative techniques they deem appropriate. As I stated in Florida v. Royer, "[t]he scope of a Terry-type `investigative' stop and any attendant search must be extremely limited or the Terry exception would `swallow the general rule that Fourth Amendment seizures [and searches] are "reasonable" only if based on probable cause.' " 460 U.S., at 510 (concurring in result), quoting Dunaway v. New York, supra, at 213.
II
In some respects the Court's opinion in this case can be seen as the logical successor of the plurality opinion in Florida v. Royer, supra. The plurality opinion in Royer contained considerable language which was unnecessary to the judgment, id., at 509 (BRENNAN, J., concurring in result), regarding the permissible scope of Terry investigative stops. See 460 U.S., at 501-507, and n. 10. Even assuming, however, that the Court finds some support in Royer for its discussion of the scope of Terry stops, the Court today goes *715 well beyond Royer in endorsing the notion that the principles of Terry permit "warrantless seizures of personal luggage from the custody of the owner on the basis of less than probable cause, for the purpose of pursuing a limited course of investigation, short of opening the luggage, that would quickly confirm or dispel the authorities' suspicion." Ante, at 702. See also ante, at 706. In addition to being unnecessary to the Court's judgment, see supra, at 711, this suggestion finds no support in Terry or its progeny and significantly dilutes the Fourth Amendment's protections against government interference with personal property. In short, it represents a radical departure from settled Fourth Amendment principles.
As noted supra, at 711-712, Terry and the cases that followed it authorize a brief "investigative" stop of an individual based on reasonable suspicion and a limited search for weapons if the officer reasonably suspects that the individual is armed and presently dangerous. The purpose of this brief stop is "to determine [the individual's] identity or to maintain the status quo momentarily while obtaining more information.. . ." Adams v. Williams, 407 U. S., at 146. Anything more than a brief stop "must be based on consent or probable cause." United States v. Brignoni-Ponce, supra, at 882. During the course of this stop, "the suspect must not be moved or asked to move more than a short distance; physical searches are permitted only to the extent necessary to protect the police officers involved during the encounter; and, most importantly, the suspect must be free to leave after a short time and to decline to answer the questions put to him." Kolender v. Lawson, 461 U. S., at 365 (BRENNAN, J., concurring). It is true that Terry stops may involve seizures of personal effects incidental to the seizure of the person involved. Obviously, an officer cannot seize a person without also seizing the personal effects that the individual has in his possession at the time. But there is a difference between *716 incidental seizures of personal effects and seizures of property independent of the seizure of the person.
The Fourth Amendment protects "effects" as well as people from unreasonable searches and seizures. In this regard, JUSTICE STEVENS pointed out in Texas v. Brown, 460 U.S. 730 (1983), that "[t]he [Fourth] Amendment protects two different interests of the citizen the interest in retaining possession of property and the interest in maintaining personal privacy." Id., at 747 (opinion concurring in judgment). "A seizure threatens the former, a search the latter." Ibid. Even if an item is not searched, therefore, its seizure implicates a protected Fourth Amendment interest. For this reason, seizures of property must be based on probable cause. See Colorado v. Bannister, 449 U.S. 1, 3 (1980); Payton v. New York, 445 U.S. 573, 587 (1980); G. M. Leasing Corp. v. United States, 429 U.S. 338, 351 (1977); Chambers v. Maroney, 399 U.S. 42, 51-52 (1970); Warden v. Hayden, 387 U.S. 294, 309-310 (1967). See also Texas v. Brown, supra, at 747-748 (STEVENS, J., concurring in judgment). Neither Terry nor its progeny changed this rule.
In this case, the officers' seizure of respondent and their later independent seizure of his luggage implicated separate Fourth Amendment interests. First, respondent had a protected interest in maintaining his personal security and privacy. Terry allows this interest to be overcome, and authorizes a limited intrusion, if the officers have reason to suspect that criminal activity is afoot. Second, respondent had a protected interest in retaining possession of his personal effects. While Terry may authorize seizures of personal effects incident to a lawful seizure of the person, nothing in the Terry line of cases authorizes the police to seizure personal property, such as luggage, independent of the seizure of the person. Such seizures significantly expand the scope of a Terry stop and may not be effected on less than probable *717 cause.[4] Obviously, they also significantly expand the scope of the intrusion.
The officers did not develop probable cause to arrest respondent during their encounter with him. See 660 F.2d, at 50. Therefore, they had to let him go. But despite the absence of probable cause to arrest respondent, the officers seized his luggage and deprived him of possession. Respondent, therefore, was subjected not only to an invasion of his personal security and privacy, but also to an independent dispossession of his personal effects based simply on reasonable suspicion. It is difficult to understand how this intrusion is not more severe than a brief stop for questioning or even a limited, on-the-spot patdown search for weapons.
In my view, as soon as the officers seized respondent's luggage, independent of their seizure of him, they exceeded the scope of a permissible Terry stop and violated respondent's Fourth Amendment rights. In addition, the officers' seizure of respondent's luggage violated the established rule that seizures of personal effects must be based on probable cause. Their actions, therefore, should not be upheld.
The Court acknowledges that seizures of personal property must be based on probable cause. See ante, at 700-702. Despite this recognition, the Court employs a balancing test drawn from Terry to conclude that personal effects may be seized based on reasonable suspicion. See ante, at 703-706.[5]*718 In Dunaway v. New York, 442 U.S. 200 (1979), the Court stated that "[t]he narrow intrusions involved in [Terry and its progeny] were judged by a balancing test rather than by the general principle that Fourth Amendment seizures must be supported by the `long-prevailing standards' of probable cause . . . only because these intrusions fell far short of the kind of intrusion associated with an arrest." Id., at 212. As Dunaway suggests, the use of a balancing test in this case is inappropriate. First, the intrusion involved in this case is no longer the "narrow" one contemplated by the Terry line of cases. See supra, at 717. In addition, the intrusion involved in this case involves not only the seizure of a person, but also the seizure of property. As noted, supra, at 711-712, Terry and its progeny did not address seizures of property. Those cases left unchanged the rule that seizures of property must be based on probable cause. See supra, at 716-717. The Terry balancing test should not be wrenched from its factual and conceptual moorings.
There are important reasons why balancing inquiries should not be conducted except in the most limited circumstances. Terry and the cases that followed it established "isolated exceptions to the general rule that the Fourth Amendment itself has already performed the constitutional balance between police objectives and personal privacy." Michigan v. Summers, 452 U.S. 692, 706 (1981) (Stewart, J., dissenting). "[T]he protections intended by the Framers could all too easily disappear in the consideration and balancing of the multifarious circumstances presented by different cases, especially when that balancing may be done in the first instance by police officers engaged in the `often competitive enterprise of ferreting out crime.' " Dunaway v. New York, *719 supra, at 213, quoting Johnson v. United States, 333 U.S. 10, 14 (1948). The truth of this proposition is apparent when one considers that the Court today has employed a balancing test "to swallow the general rule that [seizures of property] are `reasonable' only if based on probable cause." 442 U.S., at 213. JUSTICE BLACKMUN's concern over "an emerging tendency on the part of the Court to convert the Terry decision into a general statement that the Fourth Amendment requires only that any seizure be reasonable," post, at 721 (BLACKMUN, J., concurring in judgment) (footnote omitted), is certainly justified.
III
The Court also suggests today, in a discussion unnecessary to the judgment, that exposure of respondent's luggage to a narcotics detection dog "did not constitute a `search' within the meaning of the Fourth Amendment." Ante, at 707. In the District Court, respondent did "not contest the validity of sniff searches per se. . . ." 498 F. Supp. 1217, 1228 (EDNY 1980). The Court of Appeals did not reach or discuss the issue. It was not briefed or argued in this Court. In short, I agree with JUSTICE BLACKMUN that the Court should not address the issue. See post, at 723-724 (BLACKMUN, J., concurring in judgment).
I also agree with JUSTICE BLACKMUN's suggestion, ibid., that the issue is more complex than the Court's discussion would lead one to believe. As JUSTICE STEVENS suggested in objecting to "unnecessarily broad dicta" in United States v. Knotts, 460 U.S. 276 (1983), the use of electronic detection techniques that enhance human perception implicates "especially sensitive concerns." Id., at 288 (opinion concurring in judgment). Obviously, a narcotics detection dog is not an electronic detection device. Unlike the electronic "beeper" in Knotts, however, a dog does more than merely allow the police to do more efficiently what they could do using only their own senses. A dog adds a new and previously unobtainable dimension to human perception. The use of dogs, therefore, represents a greater intrusion into an individual's *720 privacy. Such use implicates concerns that are at least as sensitive as those implicated by the use of certain electronic detection devices. Cf. Katz v. United States, 389 U.S. 347 (1967).
I have expressed the view that dog sniffs of people constitute searches. See Doe v. Renfrow, 451 U.S. 1022, 1025-1026 (1981) (BRENNAN, J., dissenting from denial of certiorari). In Doe, I suggested that sniffs of inanimate objects might present a different case. Id., at 1026, n. 4. In any event, I would leave the determination of whether dog sniffs of luggage amount to searches, and the subsidiary question of what standards should govern such intrusions, to a future case providing an appropriate, and more informed, basis for deciding these questions.
IV
Justice Douglas was the only dissenter in Terry. He stated that "[t]here have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand." 392 U.S., at 39 (dissenting opinion). Today, the Court uses Terry as a justification for submitting to these pressures. Their strength is apparent, for even when the Court finds that an individual's Fourth Amendment rights have been violated it cannot resist the temptation to weaken the protections the Amendment affords.
JUSTICE BLACKMUN, with whom JUSTICE MARSHALL joins, concurring in the judgment. | This case presents the issue whether the Fourth Amendment prohibits law enforcement authorities from temporarily * detaining personal luggage for exposure to a trained narcotics detection dog on the basis of reasonable suspicion that the luggage contains narcotics. Given the enforcement problems associated with the detection of narcotics trafficking and the minimal intrusion that a properly limited detention would entail, we conclude that the Fourth Amendment does not prohibit such a detention. On the facts of this case, however, we hold that the police conduct exceeded the bounds of a permissible investigative detention of the luggage. I Respondent Raymond J. Place's behavior aroused the suspicions of law enforcement officers as he waited in line at the Miami International Airport to purchase a ticket to New 's La Guardia Airport. As Place proceeded to the gate for his flight, the agents approached him and requested his airline ticket and some identification. Place complied with the request and consented to a search of the two suitcases he had checked. Because his flight was about to depart, however, the agents decided not to search the luggage. Prompted by Place's parting remark that he had recognized that they were police, the agents inspected the address tags on the checked luggage and discrepancies in the two street addresses. Further investigation revealed that neither address existed and that the telephone number Place had given the airline belonged to a third address on the same street. On the basis of their encounter with Place and this information, the Miami agents called Drug Enforcement Administration (DEA) authorities in New to relay their information about Place. Two DEA agents waited for Place at the arrival gate at La Guardia Airport in New There again, his behavior aroused the suspicion of the agents. After he had claimed his two bags and called a limousine, the agents decided to approach him. They identified themselves as federal narcotics agents, to which Place responded that he knew they were "cops" and had spotted them as soon as he had deplaned. *699 One of the agents informed Place that, based on their own observations and information obtained from the Miami authorities, they believed that he might be carrying narcotics. After identifying the bags as belonging to him, Place stated that a number of police at the Miami Airport had surrounded him and searched his baggage. The agents responded that their information was to the contrary. The agents requested and received identification from Place a New Jersey driver's license, on which the agents later ran a computer check that disclosed no offenses, and his airline ticket receipt. When Place refused to consent to a search of his luggage, one of the agents told him that they were going to take the luggage to a federal judge to try to obtain a search warrant and that Place was free to accompany them. Place declined, but obtained from one of the agents telephone numbers at which the agents could be reached. The agents then took the bags to Kennedy Airport, where they subjected the bags to a "sniff test" by a trained narcotics detection dog. The dog reacted positively to the smaller of the two bags but ambiguously to the larger bag. Approximately 90 minutes had elapsed since the seizure of respondent's luggage. Because it was late on a Friday afternoon, the agents retained the luggage until Monday morning, when they secured a search warrant from a Magistrate for the smaller bag. Upon opening that bag, the agents discovered 1,125 grams of cocaine. Place was indicted for possession of cocaine with intent to distribute in violation of 21 U.S. C. 841(a)(1). In the District Court, Place moved to suppress the contents of the luggage seized from him at La Guardia Airport, claiming that the warrantless seizure of the luggage violated his Fourth Amendment rights.[1] The District Court denied the motion. *700 Applying the standard of to the detention of personal property, it concluded that detention of the bags could be justified if based on reasonable suspicion to believe that the bags contained narcotics. Finding reasonable suspicion, the District Court held that Place's Fourth Amendment rights were not violated by seizure of the bags by the DEA agents. Place pleaded guilty to the possession charge, reserving the right to appeal the denial of his motion to suppress. On appeal of the conviction, the United States Court of Appeals for the Second Circuit reversed. The majority assumed both that Terry principles could be applied to justify a warrantless seizure of baggage on less than probable cause and that reasonable suspicion existed to justify the investigatory stop of Place. The majority concluded, however, that the prolonged seizure of Place's baggage exceeded the permissible limits of a Terry-type investigative stop and consequently amounted to a seizure without probable cause in violation of the Fourth Amendment. We granted certiorari, and now affirm. II The Fourth Amendment protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." (Emphasis added.) Although in the context of personal property, and particularly containers, the Fourth Amendment challenge is *701 typically to the subsequent search of the container rather than to its initial seizure by the authorities, our cases reveal some general principles regarding seizures. In the ordinary case, the Court has viewed a seizure of personal property as per se unreasonable within the meaning of the Fourth Amendment unless it is accomplished pursuant to a judicial warrant issued upon probable cause and particularly describing the items to be seized.[2] See, e. g., Where law enforcement authorities have probable cause to believe that a container holds contraband or evidence of a crime, but have not secured a warrant, the Court has interpreted the Amendment to permit seizure of the property, pending issuance of a warrant to examine its contents, if the exigencies of the circumstances demand it or some other recognized exception to the warrant requirement is present. See, e. g., ; United ;[] For example, "objects such as weapons or contraband found in a public place may be seized by the police without a warrant," because, under these circumstances, the risk of the item's disappearance or use for its intended purpose before a *702 warrant may be obtained outweighs the interest in possession. See also G. M. Leasing In this case, the Government asks us to recognize the reasonableness under the Fourth Amendment of warrantless seizures of personal luggage from the custody of the owner on the basis of less than probable cause, for the purpose of pursuing a limited course of investigation, short of opening the luggage, that would quickly confirm or dispel the authorities' Specifically, we are asked to apply the principles of to permit such seizures on the basis of reasonable, articulable suspicion, premised on objective facts, that the luggage contains contraband or evidence of a crime. In our view, such application is appropriate. In Terry the Court first recognized "the narrow authority of police officers who suspect criminal activity to make limited intrusions on an individual's personal security based on less than probable cause." In approving the limited search for weapons, or "frisk," of an individual the police reasonably believed to be armed and dangerous, the Court implicitly acknowledged the authority of the police to make a forcible stop of a person when the officer has reasonable, articulable suspicion that the person has been, is, or is about to be engaged in criminal[4] That implicit proposition was embraced openly in where the Court relied on Terry to hold that the police officer lawfully made a forcible stop of the suspect to investigate an informant's tip that the suspect was carrying *70 narcotics and a concealed weapon. See also ; United ; United The exception to the probable-cause requirement for limited seizures of the person recognized in Terry and its progeny rests on a balancing of the competing interests to determine the reasonableness of the type of seizure involved within the meaning of "the Fourth Amendment's general proscription against unreasonable searches and seizures." We must balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion. When the nature and extent of the detention are minimally intrusive of the individual's Fourth Amendment interests, the opposing law enforcement interests can support a seizure based on less than probable cause. We examine first the governmental interest offered as a justification for a brief seizure of luggage from the suspect's custody for the purpose of pursuing a limited course of investigation. The Government contends that, where the authorities possess specific and articulable facts warranting a reasonable belief that a traveler's luggage contains narcotics, the governmental interest in seizing the luggage briefly to pursue further investigation is substantial. We agree. As observed in United "[t]he public has a compelling interest in detecting those who would traffic in deadly drugs for personal profit." Respondent suggests that, absent some special law enforcement interest such as officer safety, a generalized interest in law enforcement cannot justify an intrusion on an individual's Fourth Amendment interests in the absence of *704 probable cause. Our prior cases, however, do not support this proposition. In Terry, we described the governmental interests supporting the initial seizure of the person as "effective crime prevention and detection; it is this interest which underlies the recognition that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest." Similarly, in we identified three law enforcement interests that justified limited detention of the occupants of the premises during execution of a valid search warrant: "preventing flight in the event that incriminating evidence is found," "minimizing the risk of harm" both to the officers and the occupants, and "orderly completion of the search." -70. Cf. ("The predicate permitting seizures on suspicion short of probable cause is that law enforcement interests warrant a limited intrusion on the personal security of the suspect"). The test is whether those interests are sufficiently "substantial," not whether they are independent of the interest in investigating crimes effectively and apprehending suspects. The context of a particular law enforcement practice, of course, may affect the determination whether a brief intrusion on Fourth Amendment interests on less than probable cause is essential to effective criminal investigation. Because of the inherently transient nature of drug courier activity at airports, allowing police to make brief investigative stops of persons at airports on reasonable suspicion of drug-trafficking substantially enhances the likelihood that police will be able to prevent the flow of narcotics into distribution channels.[5] *705 Against this strong governmental interest, we must weigh the nature and extent of the intrusion upon the individual's Fourth Amendment rights when the police briefly detain luggage for limited investigative purposes. On this point, respondent Place urges that the rationale for a Terry stop of the person is wholly inapplicable to investigative detentions of personality. Specifically, the Terry exception to the probable-cause requirement is premised on the notion that a Terry-type stop of the person is substantially less intrusive of a person's liberty interests than a formal arrest. In the property context, however, Place urges, there are no degrees of intrusion. Once the owner's property is seized, the dispossession is absolute. We disagree. The intrusion on possessory interests occasioned by a seizure of one's personal effects can vary both in its nature and extent. The seizure may be made after the owner has relinquished control of the property to a third party or, as here, from the immediate custody and control of the owner.[6] Moreover, the police may confine their investigation * to an on-the-spot inquiry for example, immediate exposure of the luggage to a trained narcotics detection dog[7] or transport the property to another location. Given the fact that seizures of property can vary in intrusiveness, some brief detentions of personal effects may be so minimally intrusive of Fourth Amendment interests that strong countervailing governmental interests will justify a seizure based only on specific articulable facts that the property contains contraband or evidence of a crime. In sum, we conclude that when an officer's observations lead him reasonably to believe that a traveler is carrying luggage that contains narcotics, the principles of Terry and its progeny would permit the officer to detain the luggage briefly to investigate the circumstances that aroused his suspicion, provided that the investigative detention is properly limited in scope. The purpose for which respondent's luggage was seized, of course, was to arrange its exposure to a narcotics detection dog. Obviously, if this investigative procedure is itself a search requiring probable cause, the initial seizure of respondent's luggage for the purpose of subjecting it to the sniff test no matter how brief could not be justified on less than probable cause. See ; United ; United -882; 407 U. S., at The Fourth Amendment "protects people from unreasonable government intrusions into their legitimate expectations *707 of privacy." United We have affirmed that a person possesses a privacy interest in the contents of personal luggage that is protected by the Fourth Amendment. A "canine sniff" by a well-trained narcotics detection dog, however, does not require opening the luggage. It does not expose noncontraband items that otherwise would remain hidden from public view, as does, for example, an officer's rummaging through the contents of the luggage. Thus, the manner in which information is obtained through this investigative technique is much less intrusive than a typical search. Moreover, the sniff discloses only the presence or absence of narcotics, a contraband item. Thus, despite the fact that the sniff tells the authorities something about the contents of the luggage, the information obtained is limited. This limited disclosure also ensures that the owner of the property is not subjected to the embarrassment and inconvenience entailed in less discriminate and more intrusive investigative methods. In these respects, the canine sniff is sui generis. We are aware of no other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure. Therefore, we conclude that the particular course of investigation that the agents intended to pursue here exposure of respondent's luggage, which was located in a public place, to a trained canine did not constitute a "search" within the meaning of the Fourth Amendment. III There is no doubt that the agents made a "seizure" of Place's luggage for purposes of the Fourth Amendment when, following his refusal to consent to a search, the agent told Place that he was going to take the luggage to a federal judge to secure issuance of a warrant. As we observed in Terry, "[t]he manner in which the seizure [was] conducted *708 is, of course, as vital a part of the inquiry as whether [it was] warranted at all." We therefore examine whether the agents' conduct in this case was such as to place the seizure within the general rule requiring probable cause for a seizure or within Terry's exception to that rule. At the outset, we must reject the Government's suggestion that the point at which probable cause for seizure of luggage from the person's presence becomes necessary is more distant than in the case of a Terry stop of the person himself. The premise of the Government's argument is that seizures of property are generally less intrusive than seizures of the person. While true in some circumstances, that premise is faulty on the facts we address in this case. The precise type of detention we confront here is seizure of personal luggage from the immediate possession of the suspect for the purpose of arranging exposure to a narcotics detection dog. Particularly in the case of detention of luggage within the traveler's immediate possession, the police conduct intrudes on both the suspect's possessory interest in his luggage as well as his liberty interest in proceeding with his itinerary. The person whose luggage is detained is technically still free to continue his travels or carry out other personal activities pending release of the luggage. Moreover, he is not subjected to the coercive atmosphere of a custodial confinement or to the public indignity of being personally detained. Nevertheless, such a seizure can effectively restrain the person since he is subjected to the possible disruption of his travel plans in order to remain with his luggage or to arrange for its return.[8] Therefore, when the police seize luggage from the *709 suspect's custody, we think the limitations applicable to investigative detentions of the person should define the permissible scope of an investigative detention of the person's luggage on less than probable cause. Under this standard, it is clear that the police conduct here exceeded the permissible limits of a Terry-type investigative stop. The length of the detention of respondent's luggage alone precludes the conclusion that the seizure was reasonable in the absence of probable cause. Although we have recognized the reasonableness of seizures longer than the momentary ones involved in Terry, Adams, and see the brevity of the invasion of the individual's Fourth Amendment interests is an important factor in determining whether the seizure is so minimally intrusive as to be justifiable on reasonable Moreover, in assessing the effect of the length of the detention, we take into account whether the police diligently pursue their investigation. We note that here the New agents knew the time of Place's scheduled arrival at La Guardia, had ample time to arrange for their additional investigation at that location, and thereby could have minimized the intrusion on respondent's Fourth Amendment interests.[9] Thus, although we decline to adopt any outside time limitation for a permissible Terry stop,[10] we have never *710 approved a seizure of the person for the prolonged 90-minute period involved here and cannot do so on the facts presented by this case. See Although the 90-minute detention of respondent's luggage is sufficient to render the seizure unreasonable, the violation was exacerbated by the failure of the agents to accurately inform respondent of the place to which they were transporting his luggage, of the length of time he might be dispossessed, and of what arrangements would be made for return of the luggage if the investigation dispelled the In short, we hold that the detention of respondent's luggage in this case went beyond the narrow authority possessed by police to detain briefly luggage reasonably suspected to contain narcotics. IV We conclude that, under all of the circumstances of this case, the seizure of respondent's luggage was unreasonable under the Fourth Amendment. Consequently, the evidence obtained from the subsequent search of his luggage was inadmissible, and Place's conviction must be reversed. The judgment of the Court of Appeals, accordingly, is affirmed. It is so ordered. JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, concurring in the result. In this case, the Court of Appeals assumed both that the officers had the "reasonable suspicion" necessary to justify an "investigative" stop of respondent under and its progeny, and that the principles of Terry apply to seizures of property. See ; ante, at 700. The court held simply that "the prolonged seizure of [respondent's] baggage went far beyond a mere investigative stop and amounted to a violation of his Fourth Amendment rights." 660 F.2d, at See also *711 at 52, 5. I would affirm the Court of Appeals' judgment on this ground. Instead of simply affirming on this ground and putting an end to the matter, the Court decides to reach, and purportedly to resolve, the constitutionality of the seizure of respondent's luggage on less than probable cause and the exposure of that luggage to a narcotics detection dog. See ante, at -707. Apparently, the Court finds itself unable to "resist the pull to decide the constitutional issues involved in this case on a broader basis than the record before [it] imperatively requires." (9). Because the Court reaches issues unnecessary to its judgment and because I cannot subscribe to the Court's analysis of those issues, I concur only in the result. I I have had occasion twice in recent months to discuss the limited scope of the exception to the Fourth Amendment's probable-cause requirement created by Terry and its progeny. See 9 ; Unfortunately, the unwarranted expansion of that exception which the Court endorses today forces me to elaborate on my previously expressed views. In Terry the Court expressly declined to address "the constitutional propriety of an investigative `seizure' upon less than probable cause for purposes of `detention' and/or interrogation." n. 16.[1] The Court was confronted *712 with "the quite narrow question" of "whether it is always unreasonable for a policeman to seize a person and subject him to a limited search for weapons unless there is probable cause for an arrest." In addressing this question, the Court that it was dealing "with an entire rubric of police conduct necessarily swift action predicated upon the on-the-spot observations of the officer on the beat which historically has not been, and as a practical matter could not be, subjected to the warrant procedure." As a result, the conduct involved in the case has to be "tested by the Fourth Amendment's general proscription against unreasonable searches and seizures." The Court's inquiry into the "reasonableness" of the conduct at issue was based on a " `balancing [of] the need to search [or seize] against the invasion which the search [or seizure] entails.' " quoting (7). The Court concluded that the officer's conduct was reasonable and stated its holding as follows: "We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of *71 the outer clothing of such persons in an attempt to discover weapons which might be used to assault him." In the Court relied on Terry to endorse "brief" investigative stops based on reasonable -. In this regard, the Court stated that "[a] brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time." at The weapons search upheld in Adams was very limited and was based on Terry's safety 407 U.S., at The Court stated that the purpose of a "limited" weapons search "is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence." In United the Court relied on Terry and Adams in holding that "when an officer's observations lead him reasonably to suspect that a particular vehicle may contain aliens who are illegally in the country, he may stop the car briefly and investigate the circumstances that provoke "[2] The Court based this relaxation of the traditional probable-cause requirement on the importance of the governmental interest in stemming the flow of illegal aliens, on the minimal intrusion of a brief stop, and on the absence of practical alternatives for policing the border. The Court the limited holdings of Terry and Adams and while authorizing the police to "question the driver and passengers about their citizenship and immigration status, and ask them to explain suspicious circumstances," the Court expressly stated that "any further detention or search must be based on consent or probable cause." -882. See also *7 ("The Terry case created an exception to the requirement of probable cause, an exception whose `narrow scope' this Court `has been careful to maintain' " );[] It is clear that Terry, and the cases that followed it, permit only brief investigative stops and extremely limited searches based on reasonable They do not provide the police with a commission to employ whatever investigative techniques they deem appropriate. As I stated in "[t]he scope of a Terry-type `investigative' stop and any attendant search must be extremely limited or the Terry exception would `swallow the general rule that Fourth Amendment seizures [and searches] are "reasonable" only if based on probable cause.' " quoting II In some respects the Court's opinion in this case can be seen as the logical successor of the plurality opinion in The plurality opinion in contained considerable language which was unnecessary to the judgment, at 9 regarding the permissible scope of Terry investigative stops. See 460 U.S., at 1-7, and n. 10. Even assuming, however, that the Court finds some support in for its discussion of the scope of Terry stops, the Court today goes *715 well beyond in endorsing the notion that the principles of Terry permit "warrantless seizures of personal luggage from the custody of the owner on the basis of less than probable cause, for the purpose of pursuing a limited course of investigation, short of opening the luggage, that would quickly confirm or dispel the authorities' " Ante, at 702. See also ante, at In addition to being unnecessary to the Court's judgment, see this suggestion finds no support in Terry or its progeny and significantly dilutes the Fourth Amendment's protections against government interference with personal property. In short, it represents a radical departure from settled Fourth Amendment principles. As -712, Terry and the cases that followed it authorize a brief "investigative" stop of an individual based on reasonable suspicion and a limited search for weapons if the officer reasonably suspects that the individual is armed and presently dangerous. The purpose of this brief stop is "to determine [the individual's] identity or to maintain the status quo momentarily while obtaining more information." 407 U. S., at Anything more than a brief stop "must be based on consent or probable cause." United During the course of this stop, "the suspect must not be moved or asked to move more than a short distance; physical searches are permitted only to the extent necessary to protect the police officers involved during the encounter; and, most importantly, the suspect must be free to leave after a short time and to decline to answer the questions put to him." It is true that Terry stops may involve seizures of personal effects incidental to the seizure of the person involved. Obviously, an officer cannot seize a person without also seizing the personal effects that the individual has in his possession at the time. But there is a difference between *716 incidental seizures of personal effects and seizures of property independent of the seizure of the person. The Fourth Amendment protects "effects" as well as people from unreasonable searches and seizures. In this regard, JUSTICE STEVENS pointed out in that "[t]he [Fourth] Amendment protects two different interests of the citizen the interest in retaining possession of property and the interest in maintaining personal privacy." "A seizure threatens the former, a search the latter." Even if an item is not searched, therefore, its seizure implicates a protected Fourth Amendment interest. For this reason, seizures of property must be based on probable cause. See ; ; G. M. Leasing 51 ; 99 U.S. 42, ; 87 U.S. 294, 09-10 (7). See also -748 Neither Terry nor its progeny changed this rule. In this case, the officers' seizure of respondent and their later independent seizure of his luggage implicated separate Fourth Amendment interests. First, respondent had a protected interest in maintaining his personal security and privacy. Terry allows this interest to be overcome, and authorizes a limited intrusion, if the officers have reason to suspect that criminal activity is afoot. Second, respondent had a protected interest in retaining possession of his personal effects. While Terry may authorize seizures of personal effects incident to a lawful seizure of the person, nothing in the Terry line of cases authorizes the police to seizure personal property, such as luggage, independent of the seizure of the person. Such seizures significantly expand the scope of a Terry stop and may not be effected on less than probable *717 cause.[4] Obviously, they also significantly expand the scope of the intrusion. The officers did not develop probable cause to arrest respondent during their encounter with him. See 660 F.2d, at Therefore, they had to let him go. But despite the absence of probable cause to arrest respondent, the officers seized his luggage and deprived him of possession. Respondent, therefore, was subjected not only to an invasion of his personal security and privacy, but also to an independent dispossession of his personal effects based simply on reasonable It is difficult to understand how this intrusion is not more severe than a brief stop for questioning or even a limited, on-the-spot patdown search for weapons. In my view, as soon as the officers seized respondent's luggage, independent of their seizure of him, they exceeded the scope of a permissible Terry stop and violated respondent's Fourth Amendment rights. In addition, the officers' seizure of respondent's luggage violated the established rule that seizures of personal effects must be based on probable cause. Their actions, therefore, should not be upheld. The Court acknowledges that seizures of personal property must be based on probable cause. See ante, at 700-702. Despite this recognition, the Court employs a balancing test drawn from Terry to conclude that personal effects may be seized based on reasonable See ante, at 70-.[5]*718 In the Court stated that "[t]he narrow intrusions involved in [Terry and its progeny] were judged by a balancing test rather than by the general principle that Fourth Amendment seizures must be supported by the `long-prevailing standards' of probable cause only because these intrusions fell far short of the kind of intrusion associated with an arrest." 2. As Dunaway suggests, the use of a balancing test in this case is inappropriate. First, the intrusion involved in this case is no longer the "narrow" one contemplated by the Terry line of cases. See In addition, the intrusion involved in this case involves not only the seizure of a person, but also the seizure of property. As -712, Terry and its progeny did not address seizures of property. Those cases left unchanged the rule that seizures of property must be based on probable cause. See The Terry balancing test should not be wrenched from its factual and conceptual moorings. There are important reasons why balancing inquiries should not be conducted except in the most limited circumstances. Terry and the cases that followed it established "isolated exceptions to the general rule that the Fourth Amendment itself has already performed the constitutional balance between police objectives and personal privacy." "[T]he protections intended by the Framers could all too easily disappear in the consideration and balancing of the multifarious circumstances presented by different cases, especially when that balancing may be done in the first instance by police officers engaged in the `often competitive enterprise of ferreting out crime.' " *719 quoting U.S. 10, The truth of this proposition is apparent when one considers that the Court today has employed a balancing test "to swallow the general rule that [seizures of property] are `reasonable' only if based on probable cause." 442 U.S., JUSTICE BLACKMUN's concern over "an emerging tendency on the part of the Court to convert the Terry decision into a general statement that the Fourth Amendment requires only that any seizure be reasonable," post, at 721 (BLACKMUN, J., concurring in judgment) is certainly justified. III The Court also suggests today, in a discussion unnecessary to the judgment, that exposure of respondent's luggage to a narcotics detection dog "did not constitute a `search' within the meaning of the Fourth Amendment." Ante, at 707. In the District Court, respondent did "not contest the validity of sniff searches per se." The Court of Appeals did not reach or discuss the issue. It was not briefed or argued in this Court. In short, I agree with JUSTICE BLACKMUN that the Court should not address the issue. See post, at 72-724 (BLACKMUN, J., concurring in judgment). I also agree with JUSTICE BLACKMUN's suggestion, ib that the issue is more complex than the Court's discussion would lead one to believe. As JUSTICE STEVENS suggested in objecting to "unnecessarily broad dicta" in United the use of electronic detection techniques that enhance human perception implicates "especially sensitive concerns." Obviously, a narcotics detection dog is not an electronic detection device. Unlike the electronic "beeper" in Knotts, however, a dog does more than merely allow the police to do more efficiently what they could do using only their own senses. A dog adds a new and previously unobtainable dimension to human perception. The use of dogs, therefore, represents a greater intrusion into an individual's *720 privacy. Such use implicates concerns that are at least as sensitive as those implicated by the use of certain electronic detection devices. Cf. 89 U.S. 47 (7). I have expressed the view that dog sniffs of people constitute searches. See In Doe, I suggested that sniffs of inanimate objects might present a different case. In any event, I would leave the determination of whether dog sniffs of luggage amount to searches, and the subsidiary question of what standards should govern such intrusions, to a future case providing an appropriate, and more informed, basis for deciding these questions. IV Justice Douglas was the only dissenter in Terry. He stated that "[t]here have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand." 92 U.S., at 9 Today, the Court uses Terry as a justification for submitting to these pressures. Their strength is apparent, for even when the Court finds that an individual's Fourth Amendment rights have been violated it cannot resist the temptation to weaken the protections the Amendment affords. JUSTICE BLACKMUN, with whom JUSTICE MARSHALL joins, concurring in the judgment. |
Justice Brennan | dissenting | false | Lego v. Twomey | 1972-01-12T00:00:00 | null | https://www.courtlistener.com/opinion/108429/lego-v-twomey/ | https://www.courtlistener.com/api/rest/v3/clusters/108429/ | 1,972 | 1971-039 | 1 | 4 | 3 | When the prosecution, state or federal, seeks to put in evidence an allegedly involuntary confession, its admissibility is determined by the command of the Fifth Amendment that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself." Davis v. North Carolina, 384 U.S. 737, 740 (1966); Malloy v. Hogan, 378 U.S. 1, 7-8 (1964); Bram v. United States, 168 U.S. 532, 542-543 (1897). This right against compulsory self-incrimination is the "essential mainstay" of our system of criminal prosecution, Malloy v. Hogan, supra, at 7, "a system in which the State must establish guilt by evidence independently *491 and freely secured and may not by coercion prove its charge against an accused out of his own mouth," Rogers v. Richmond, 365 U.S. 534, 541 (1961). What is thereby protected from governmental invasion is, quite simply, "the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will." Malloy v. Hogan, supra, at 8. Hence, a confession is involuntary and inadmissible unless it is "the product of a rational intellect and a free will." Blackburn v. Alabama, 361 U.S. 199, 208 (1960); see Reck v. Pate, 367 U.S. 433, 440 (1961).
Ideally, of course, a defendant's compelled utterance would never be admitted into evidence against him. As we said in Jackson v. Denno, 378 U.S. 368, 376 (1964), it is "axiomatic" that a criminal conviction cannot stand if it "is founded, in whole or in part, upon an involuntary confession . . . even though there is ample evidence aside from the confession to support the conviction." Yet I doubt that informed observers of the criminal process would deny that at least some compelled utterances slip through, even assuming scrupulous adherence to constitutional standards and the most rigorous procedural protections. Jackson was an attempt to move that reality somewhat closer to the ideal. We there rejected the New York rule because it "did not afford a reliable determination of the voluntariness of the confession offered in evidence at the trial" and consequently "did not adequately protect [a defendant's] right to be free of a conviction based upon a coerced confession." Id., at 377. As the Court today points out, "[t]he procedure we established in Jackson was designed to safeguard the right of an individual, entirely apart from his guilt or innocence, not to be compelled to condemn himself by his own utterances." Ante, at 485.
There is no need to dwell upon the importance our American concept of justice attaches to preserving the *492 integrity of the constitutional privilege. Both the rule that automatically reverses a conviction when an involuntary confession was admitted at trial and the procedure established in Jackson for determining whether a confession was voluntary are means to further the end that no utterance of a defendant not the product of his own free choice will be used against him. The Court today reaffirms what we held in Jackson: "[W]hen a confession challenged as involuntary is sought to be used against a criminal defendant at his trial, he is entitled to a reliable and clear-cut determination that the confession was in fact voluntarily rendered." Ante, at 489. But the Court goes on to hold that it follows from Jackson that "the prosecution must prove at least by a preponderance of the evidence that the confession was voluntary." Ibid. I disagree. In my view, the rationale of Jackson requires the conclusion that the preponderance standard does not provide sufficient protection against the danger that involuntary confessions will be employed in criminal trials.
A Jackson hearing normally presents the factfinder with conflicting testimony from the defendant and law enforcement officers about what occurred during the officers' interrogation of the defendant. The factfinder's resolution of this conflict is often, as a practical matter, the final resolution of the voluntariness issue. Jackson, supra, at 390-391. This case is a typical example. Petitioner testified that he confessed because the police had beaten him; the police testified that there was no beating. As the Court notes, "[t]he trial judge resolved this credibility problem in favor of the police and ruled the confession admissible." Ante, at 480. When the question before the factfinder is whether to believe one or the other of two self-serving accounts of what has happened, it is apparent that the standard of persuasion will in many instances be of controlling significance. *493 See Speiser v. Randall, 357 U.S. 513, 525-526 (1958). Although the Court suggests "that federal rights have [not] suffered from determining admissibility by a preponderance of the evidence" and that there has been no showing "that admissibility rulings have been unreliable. . . because not based on some higher standard," ante, at 488, I do not think it can be denied, given the factual nature of the ordinary voluntariness determination, that permitting a lower standard of proof will necessarily result in the admission of more involuntary confessions than would be admitted were the prosecution required to meet a higher standard. The converse, of course, is also true. Requiring the higher standard means that some voluntary confessions will be excluded as involuntary even though they would have been found voluntary under the lower standard.
The standard of proof required for a criminal conviction presents a similar situation, yet we have held that guilt must be established by proof beyond a reasonable doubt. In re Winship, 397 U.S. 358, 361-364 (1970); see id., at 370-372 (Harlan, J., concurring.) Permitting proof by a preponderance of the evidence would necessarily result in the conviction of more defendants who are in fact innocent. Conversely, imposing the burden of proof beyond a reasonable doubt means that more defendants who are in fact guilty are found innocent. It seems to me that the same considerations that demand the reasonable-doubt standard when guilt or innocence is at stake also demand that standard when the question is the admissibility of an allegedly involuntary confession.
We permit proof by a preponderance of the evidence in civil litigation because "we view it as no more serious in general for there to be an erroneous verdict in the defendant's favor than for there to be an erroneous verdict in the plaintiff's favor." Id., at 371 (Harlan, J., concurring). We do not take that view in criminal cases. *494 We said in Winship that the reasonable-doubt standard "is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence . . . ." Id., at 363. As Mr. Justice Harlan put it in his concurring opinion, the requirement of proof beyond a reasonable doubt is "bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free." Id., at 372.
If we permit the prosecution to prove by a preponderance of the evidence that a confession was voluntary, then, to paraphrase Mr. Justice Harlan, we must be prepared to justify the view that it is no more serious in general to admit involuntary confessions than it is to exclude voluntary confessions. I am not prepared to justify that view. Compelled self-incrimination is so alien to the American sense of justice that I see no way that such a view could ever be justified. If we are to provide "concrete substance" for the command of the Fifth Amendment that no person shall be compelled to condemn himself, we must insist, as we do at the trial of guilt or innocence, that the prosecution prove that the defendant's confession was voluntary beyond a reasonable doubt.[*] In my judgment, to paraphrase Mr. Justice *495 Harlan again, the command of the Fifth Amendment reflects the determination of our society that it is worse to permit involuntary self-condemnation than it is to deprive a jury of probative evidence. Just as we do not convict when there is a reasonable doubt of guilt, we should not permit the prosecution to introduce into evidence a defendant's confession when there is a reasonable doubt that it was the product of his free and rational choice.
I add only that the absolute bar against the admission of a defendant's compelled utterance at his criminal trial is fundamentally an expression of the American commitment to the moral worth of the individual. What we said in Winship bears repeating here. "[U]se of the reasonable-doubt standard is indispensable to command the respect and confidence of the community in applications of the criminal law. It is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned." Id., at 364. I believe that it is just as critical to our system of criminal justice that when a person's words are used against him, no reasonable doubt remains that he spoke of his own free will.
| When the prosecution, state or federal, seeks to put in evidence an allegedly involuntary confession, its admissibility is determined by the command of the Fifth Amendment that "[n]o person shall be compelled in any criminal case to be a witness against himself." ; ; This right against compulsory self-incrimination is the "essential mainstay" of our system of criminal prosecution, "a system in which the State must establish guilt by evidence independently *491 and freely secured and may not by coercion prove its charge against an accused out of his own mouth," What is thereby protected from governmental invasion is, quite simply, "the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will." Hence, a confession is involuntary and inadmissible unless it is "the product of a rational intellect and a free will." ; see Ideally, of course, a defendant's compelled utterance would never be admitted into evidence against him. As we said in it is "axiomatic" that a criminal conviction cannot stand if it "is founded, in whole or in part, upon an involuntary confession even though there is ample evidence aside from the confession to support the conviction." Yet I doubt that informed observers of the criminal process would deny that at least some compelled utterances slip through, even assuming scrupulous adherence to constitutional standards and the most rigorous procedural protections. was an attempt to move that reality somewhat closer to the ideal. We there rejected the New York rule because it "did not afford a reliable determination of the voluntariness of the confession offered in evidence at the trial" and consequently "did not adequately protect [a defendant's] right to be free of a conviction based upon a coerced confession." As the Court today points out, "[t]he procedure we established in was designed to safeguard the right of an individual, entirely apart from his guilt or innocence, not to be compelled to condemn himself by his own utterances." Ante, at 485. There is no need to dwell upon the importance our American concept of justice attaches to preserving the *492 integrity of the constitutional privilege. Both the rule that automatically reverses a conviction when an involuntary confession was admitted at trial and the procedure established in for determining whether a confession was voluntary are means to further the end that no utterance of a defendant not the product of his own free choice will be used against him. The Court today reaffirms what we held in : "[W]hen a confession challenged as involuntary is sought to be used against a criminal defendant at his trial, he is entitled to a reliable and clear-cut determination that the confession was in fact voluntarily rendered." Ante, at 489. But the Court goes on to hold that it follows from that "the prosecution must prove at least by a preponderance of the evidence that the confession was voluntary." I disagree. In my view, the rationale of requires the conclusion that the preponderance standard does not provide sufficient protection against the danger that involuntary confessions will be employed in criminal trials. A hearing normally presents the factfinder with conflicting testimony from the defendant and law enforcement officers about what occurred during the officers' interrogation of the defendant. The factfinder's resolution of this conflict is often, as a practical matter, the final resolution of the voluntariness issue. This case is a typical example. Petitioner testified that he confessed because the police had beaten him; the police testified that there was no beating. As the Court notes, "[t]he trial judge resolved this credibility problem in favor of the police and ruled the confession admissible." Ante, at 480. When the question before the factfinder is whether to believe one or the other of two self-serving accounts of what has happened, it is apparent that the standard of persuasion will in many instances be of controlling significance. *493 See Although the Court suggests "that federal rights have [not] suffered from determining admissibility by a preponderance of the evidence" and that there has been no showing "that admissibility rulings have been unreliable. because not based on some higher standard," ante, at 488, I do not think it can be denied, given the factual nature of the ordinary voluntariness determination, that permitting a lower standard of proof will necessarily result in the admission of more involuntary confessions than would be admitted were the prosecution required to meet a higher standard. The converse, of course, is also true. Requiring the higher standard means that some voluntary confessions will be excluded as involuntary even though they would have been found voluntary under the lower standard. The standard of proof required for a criminal conviction presents a similar situation, yet we have held that guilt must be established by proof beyond a reasonable doubt. In re Winship, ; see Permitting proof by a preponderance of the evidence would necessarily result in the conviction of more defendants who are in fact innocent. Conversely, imposing the burden of proof beyond a reasonable doubt means that more defendants who are in fact guilty are found innocent. It seems to me that the same considerations that demand the reasonable-doubt standard when guilt or innocence is at stake also demand that standard when the question is the admissibility of an allegedly involuntary confession. We permit proof by a preponderance of the evidence in civil litigation because "we view it as no more serious in general for there to be an erroneous verdict in the defendant's favor than for there to be an erroneous verdict in the plaintiff's favor." We do not take that view in criminal cases. *494 We said in Winship that the reasonable-doubt standard "is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence" As Mr. Justice Harlan put it in his concurring opinion, the requirement of proof beyond a reasonable doubt is "bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free." If we permit the prosecution to prove by a preponderance of the evidence that a confession was voluntary, then, to paraphrase Mr. Justice Harlan, we must be prepared to justify the view that it is no more serious in general to admit involuntary confessions than it is to exclude voluntary confessions. I am not prepared to justify that view. Compelled self-incrimination is so alien to the American sense of justice that I see no way that such a view could ever be justified. If we are to provide "concrete substance" for the command of the Fifth Amendment that no person shall be compelled to condemn himself, we must insist, as we do at the trial of guilt or innocence, that the prosecution prove that the defendant's confession was voluntary beyond a reasonable doubt.[*] In my judgment, to paraphrase Mr. Justice *495 Harlan again, the command of the Fifth Amendment reflects the determination of our society that it is worse to permit involuntary self-condemnation than it is to deprive a jury of probative evidence. Just as we do not convict when there is a reasonable doubt of guilt, we should not permit the prosecution to introduce into evidence a defendant's confession when there is a reasonable doubt that it was the product of his free and rational choice. I add only that the absolute bar against the admission of a defendant's compelled utterance at his criminal trial is fundamentally an expression of the American commitment to the moral worth of the individual. What we said in Winship bears repeating here. "[U]se of the reasonable-doubt standard is indispensable to command the respect and confidence of the community in applications of the criminal law. It is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned." I believe that it is just as critical to our system of criminal justice that when a person's words are used against him, no reasonable doubt remains that he spoke of his own free will. |
Justice Powell | concurring | false | Bounds v. Smith | 1977-04-27T00:00:00 | null | https://www.courtlistener.com/opinion/109643/bounds-v-smith/ | https://www.courtlistener.com/api/rest/v3/clusters/109643/ | 1,977 | 1976-093 | 2 | 6 | 3 | The decision today recognizes that a prison inmate has a constitutional right of access to the courts to assert such procedural and substantive rights as may be available to him under state and federal law. It does not purport to pass on the kinds of claims that the Constitution requires state or federal courts to hear. In Wolff v. McDonnell, 418 U.S. 539, 577-580 (1974), where we extended the right of access recognized in Johnson v. Avery, 393 U.S. 483 (1969), to civil rights actions arising under the Civil Rights Act of 1871, we did not suggest that the Constitution required such actions to be heard in federal court. And in Griffin v. Illinois, 351 U.S. 12 (1956), where the Court required the States to provide trial records for indigents on appeal, the plurality and concurring opinions explicitly recognized that the Constitution does not require any appellate review of state convictions. Similarly, the holding here implies nothing as to the constitutionally required scope of review of prisoners' claims in state or federal court.
With this understanding, I join the opinion of the Court.
MR. | The decision today recognizes that a prison inmate has a constitutional right of access to the courts to assert such procedural and substantive rights as may be available to him under state and federal law. It does not purport to pass on the kinds of claims that the Constitution requires state or federal courts to hear. In where we extended the right of access recognized in to civil rights actions arising under the Civil Rights Act of 1871, we did not suggest that the Constitution required such actions to be heard in federal court. And in where the Court required the States to provide trial records for indigents on appeal, the plurality and concurring opinions explicitly recognized that the Constitution does not require any appellate review of state convictions. Similarly, the holding here implies nothing as to the constitutionally required scope of review of prisoners' claims in state or federal court. With this understanding, I join the opinion of the Court. MR. |
Justice O'Connor | majority | false | Lockyer v. Andrade | 2003-03-05T00:00:00 | null | https://www.courtlistener.com/opinion/127898/lockyer-v-andrade/ | https://www.courtlistener.com/api/rest/v3/clusters/127898/ | 2,003 | 2002-029 | 1 | 5 | 4 | 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 Thomas | majority | false | FDIC v. Meyer | 1994-02-23T00:00:00 | null | https://www.courtlistener.com/opinion/112931/fdic-v-meyer/ | https://www.courtlistener.com/api/rest/v3/clusters/112931/ | 1,994 | 1993-024 | 2 | 9 | 0 | In Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), we implied a cause of action for damages against federal agents who allegedly violated the Constitution. Today we are asked to imply a similar cause of action directly against an agency of the Federal Government. Because the logic of Bivens itself does not support such an extension, we decline to take this step.
I
On April 13, 1982, the California Savings and Loan Commissioner seized Fidelity Savings and Loan Association (Fidelity), a California-chartered thrift institution, and appointed the Federal Savings and Loan Insurance Corporation (FSLIC) to serve as Fidelity's receiver under state law. That same day, the Federal Home Loan Bank Board appointed FSLIC to serve as Fidelity's receiver under federal law. In its capacity as receiver, FSLIC had broad authority to "take such action as may be necessary to put [the thrift] in a sound solvent condition." 48 Stat. 1259, as amended, 12 U.S. C. § 1729(b)(1)(A)(ii) (repealed 1989). Pursuant to its general policy of terminating the employment of a failed thrift's senior management, FSLIC, through its special representative Robert L. Pattullo, terminated respondent John H. Meyer, a senior Fidelity officer.
Approximately one year later, Meyer filed this lawsuit against a number of defendants, including FSLIC and Pattullo, *474 in the United States District Court for the Northern District of California. At the time of trial, Meyer's sole claim against FSLIC and Pattullo was that his summary discharge deprived him of a property right (his right to continued employment under California law) without due process of law in violation of the Fifth Amendment. In making this claim, Meyer relied upon Bivens v. Six Unknown Fed. Narcotics Agents, supra, which implied a cause of action for damages against federal agents who allegedly violated the Fourth Amendment. The jury returned a $130,000 verdict against FSLIC, but found in favor of Pattullo on qualified immunity grounds.
Petitioner Federal Deposit Insurance Corporation (FDIC), FSLIC's statutory successor,[1] appealed to the Court of Appeals for the Ninth Circuit, which affirmed. 944 F.2d 562 (1991). First, the Court of Appeals determined that the Federal Tort Claims Act (FTCA or Act), 28 U.S. C. §§ 1346(b), 2671-2680, did not provide Meyer's exclusive remedy. 944 F.2d, at 568-572. Although the FTCA remedy is "exclusive" for all "claims which are cognizable under section 1346(b)," 28 U.S. C. § 2679(a), the Court of Appeals decided that Meyer's claim was not cognizable under § 1346(b). 944 F.2d, at 567, 572. The court then concluded that the "sue-and-be-sued" clause contained in FSLIC's organic statute, 12 U.S. C. § 1725(c)(4) (repealed 1989), constituted a waiver of sovereign immunity for Meyer's claim and entitled him to maintain an action against the agency. 944 F.2d, at 566, 572. Finally, on the merits, the court affirmed the jury's conclusion that Meyer had been deprived of due process when he was summarily discharged without notice and a hearing. Id., at 572-575. We granted certiorari to consider *475 the validity of the damages award against FSLIC. 507 U.S. 983 (1993).[2]
II
Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit. Loeffler v. Frank, 486 U.S. 549, 554 (1988); Federal Housing Administration v. Burr, 309 U.S. 242, 244 (1940). Sovereign immunity is jurisdictional in nature. Indeed, the "terms of [the United States'] consent to be sued in any court define that court's jurisdiction to entertain the suit." United States v. Sherwood, 312 U.S. 584, 586 (1941). See also United States v. Mitchell, 463 U.S. 206, 212 (1983) ("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"). Therefore, we must first decide whether FSLIC's immunity has been waived.
A
When Congress created FSLIC in 1934, it empowered the agency "[t]o sue and be sued, complain and defend, in any court of competent jurisdiction." 12 U.S. C. § 1725(c)(4) (repealed 1989).[3] By permitting FSLIC to sue and be sued, Congress effected a "broad" waiver of FSLIC's immunity from suit. United States v. Nordic Village, Inc., 503 U.S. 30, 34 (1992). In 1946, Congress passed the FTCA, which waived the sovereign immunity of the United States for certain torts committed by federal employees. 28 U.S. C. *476 § 1346(b).[4] In order to "place torts of `suable' agencies . . . upon precisely the same footing as torts of `nonsuable' agencies," Loeffler, supra, at 562 (internal quotation marks omitted), Congress, through the FTCA, limited the scope of sue-and-be-sued waivers such as that contained in FSLIC's organic statute. The FTCA limitation provides:
"The authority of any federal agency to sue and be sued in its own name shall not be construed to authorize suits against such federal agency on claims which are cognizable under section 1346(b) of this title, and the remedies provided by this title in such cases shall be exclusive." 28 U.S. C. § 2679(a).
Thus, if a suit is "cognizable" under § 1346(b) of the FTCA, the FTCA remedy is "exclusive" and the federal agency cannot be sued "in its own name," despite the existence of a sue-and-be-sued clause.
The first question, then, is whether Meyer's claim is "cognizable" under § 1346(b). The term "cognizable" is not defined in the Act. In the absence of such a definition, we construe a statutory term in accordance with its ordinary or natural meaning. Smith v. United States, 508 U.S. 223, 228 (1993). Cognizable ordinarily means "[c]apable of being tried or examined before a designated tribunal; within [the] jurisdiction of [a] court or power given to [a] court to adjudicate [a] controversy." Black's Law Dictionary 259 (6th ed. 1990). Under this definition, the inquiry focuses on the jurisdictional grant provided by § 1346(b).
*477 Section 1346(b) grants the federal district courts jurisdiction over a certain category of claims for which the United States has waived its sovereign immunity and "render[ed]" itself liable. Richards v. United States, 369 U.S. 1, 6 (1962). This category includes claims that are:
"[1] against the United States, [2] for money damages, . . . [3] for injury or loss of property, or personal injury or death [4] caused by the negligent or wrongful act or omission of any employee of the Government [5] while acting within the scope of his office or employment, [6] under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S. C. § 1346(b).
A claim comes within this jurisdictional grantand thus is "cognizable" under § 1346(b)if it is actionable under § 1346(b). And a claim is actionable under § 1346(b) if it alleges the six elements outlined above. See Loeffler, supra, at 562 (§ 2679(a) limits the scope of sue-and-be-sued waivers "in the context of suits for which [Congress] provided a cause of action under the FTCA" (emphasis added)).[5]
Applying these principles to this case, we conclude that Meyer's constitutional tort claim is not "cognizable" under § 1346(b) because it is not actionable under § 1346(b)that is, § 1346(b) does not provide a cause of action for such a claim. As noted above, to be actionable under § 1346(b), a claim must allege, inter alia, that the United States "would be liable to the claimant" as "a private person" "in accordance with the law of the place where the act or omission occurred." A constitutional tort claim such as Meyer's could *478 not contain such an allegation. Indeed, we have consistently held that § 1346(b)'s reference to the "law of the place" means law of the Statethe source of substantive liability under the FTCA. See, e. g., Miree v. DeKalb County, 433 U.S. 25, 29, n. 4 (1977); United States v. Muniz, 374 U.S. 150, 153 (1963); Richards, supra, at 6-7, 11; Rayonier Inc. v. United States, 352 U.S. 315, 318 (1957). By definition, federal law, not state law, provides the source of liability for a claim alleging the deprivation of a federal constitutional right. To use the terminology of Richards, the United States simply has not rendered itself liable under § 1346(b) for constitutional tort claims. Thus, because Meyer's constitutional tort claim is not cognizable under § 1346(b), the FTCA does not constitute his "exclusive" remedy. His claim was therefore properly brought against FSLIC "in its own name." 28 U.S. C. § 2679(a).
FDIC argues that by exposing a sue-and-be-sued agency to constitutional tort claims, our interpretation of "cognizability" runs afoul of Congress' understanding that § 2679(a) would place the torts of "suable" and "nonsuable" agencies on the same footing. See Loeffler, 486 U. S., at 562. FDIC would deem all claims "sounding in tort"including constitutional torts"cognizable" under § 1346(b). Under FDIC's reading of the statute, only the portion of § 1346(b) that describes a "tort"i. e., "claims against the United States, for money damages, . . . for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government"would govern cognizability. The remaining portion of § 1346(b) would simply describe a "limitation" on the waiver of sovereign immunity.[6]
*479 We reject this reading of the statute. As we have already noted, § 1346(b) describes the scope of jurisdiction by reference to claims for which the United States has waived its immunity and rendered itself liable. FDIC seeks to uncouple the scope of jurisdiction under § 1346(b) from the scope of the waiver of sovereign immunity under § 1346(b). Under its interpretation, the jurisdictional grant would be broad (covering all claims sounding in tort), but the waiver of sovereign immunity would be narrow (covering only those claims for which a private person would be held liable under state law). There simply is no basis in the statutory language for the parsing FDIC suggests. Section 2679(a)'s reference to claims "cognizable" under § 1346(b) means cognizable under the whole of § 1346(b), not simply a portion of it.[7]
*480 B
Because Meyer's claim is not cognizable under § 1346(b), we must determine whether FSLIC's sue-and-be-sued clause waives sovereign immunity for the claim. FDIC argues that the scope of the sue-and-be-sued waiver should be limited to cases in which FSLIC would be subjected to liability as a private entity. A constitutional tort claim such as Meyer's, FDIC argues, would fall outside the sue-and-be-sued waiver because the Constitution generally does not restrict the conduct of private entities. In essence, FDIC asks us to engraft a portion of the sixth element of § 1346(b)liability "under circumstances where the United States, if a private person, would be liable to the claimant"onto the sue-and-be-sued clause.
On its face, the sue-and-be-sued clause contains no such limitation. To the contrary, its terms are simple and broad: FSLIC "shall have power . . . [t]o sue and be sued, complain and defend, in any court of competent jurisdiction in the United States." 12 U.S. C. § 1725(c)(4) (repealed 1989). In the past, we have recognized that such sue-and-be-sued waivers are to be "liberally construed," Federal Housing Administration v. Burr, 309 U. S., at 245, notwithstanding the general rule that waivers of sovereign immunity are to be read narrowly in favor of the sovereign. See United States v. Nordic Village, Inc., 503 U. S., at 34. Burr makes it clear that sue-and-be-sued clauses cannot be limited by implication unless there has been a
"clea[r] show[ing] that certain types of suits are not consistent with the statutory or constitutional scheme, that an implied restriction of the general authority is necessary to avoid grave interference with the performance of a governmental function, or that for other reasons it was plainly the purpose of Congress to use the `sue and be sued' clause in a narrow sense." 309 U.S., at 245 (footnote omitted). *481 See also Loeffler, 486 U. S., at 561; Franchise Tax Bd. of Cal. v. Postal Service, 467 U.S. 512, 517-518 (1984). Absent such a showing, agencies "authorized to `sue and be sued' are presumed to have fully waived immunity." International Primate Protection League v. Administrators of Tulane Ed. Fund, 500 U.S. 72, 86, n. 8 (1991) (describing the holding in Burr).
FDIC does not attempt to make the "clear" showing of congressional purpose necessary to overcome the presumption that immunity has been waived.[8] Instead, it bases its argument solely on language in our cases suggesting that federal agencies should bear the burdens of suit borne by private entities. Typical of these cases is Burr, which stated that "when Congress launche[s] a governmental agency into the commercial world and endow[s] it with authority to `sue or be sued,' that agency is not less amenable to judicial process than a private enterprise under like circumstances would be." 309 U.S., at 245 (emphasis added). See also Franchise Tax Bd., supra, at 520 ("[U]nder Burr not only must we liberally construe the sue-and-be-sued clause, but also we must presume that the [Postal] Service's liability is the same as that of any other business") (emphasis added); Loeffler, supra, at 557 (through a sue-and-be-sued clause, "Congress waived [the Postal Service's] immunity from interest awards, authorizing recovery of interest from the Postal Service to the extent that interest is recoverable against a private party as a normal incident of suit" (emphasis added)).
When read in context, however, it is clear that Burr, Franchise Tax Board, and Loeffler do not support the limitation FDIC proposes. In these cases, the claimants sought to subject the agencies to a particular suit or incident of suit to which private businesses are amenable as a matter of course. *482 In Burr, for example, the claimant, who had obtained a judgment against an employee of the Federal Housing Administration (FHA), served the FHA with a writ to garnish the employee's wages. 309 U.S., at 243, 248, n. 11. Similarly, in Franchise Tax Board, the claimant directed the United States Postal Service to withhold amounts of delinquent state income taxes from the wages of four Postal Service employees. 467 U.S., at 513. And in Loeffler, the claimant, who was discharged from his employment as a rural letter carrier, sought prejudgment interest as an incident of his successful suit against the Postal Service under Title VII of the Civil Rights Act of 1964, 42 U.S. C. § 2000e et seq. 486 U. S., at 551-552.
Because the claimant in each of these cases was seeking to hold the agency liable just like "any other business," Franchise Tax Board, supra, at 520, it was only natural for the Court to look to the liability of private businesses for guidance. It stood to reason that the agency could not escape the liability a private enterprise would face in similar circumstances. Here, by contrast, Meyer does not seek to hold FSLIC liable just like any other business. Indeed, he seeks to impose on FSLIC a form of tort liabilitytort liability arising under the Constitutionthat generally does not apply to private entities. Burr, Franchise Tax Board, and Loeffler simply do not speak to the issue of sovereign immunity in the context of such a constitutional tort claim.
Moreover, nothing in these decisions suggests that the liability of a private enterprise should serve as the outer boundary of the sue-and-be-sued waiver. Rather, those cases "merely involve[d] a determination of whether or not [the particular suit or incident of suit] [came] within the scope of" the sue-and-be-sued waiver. Burr, supra, at 244. When we determined that the particular suit or incident of suit fell within the sue-and-be-sued waiver, we looked to the liability of a private enterprise as a floor below which the agency's liability could not fall. In the present case, by contrast, *483 FDIC argues that a sue-and-be-sued agency's liability should never be greater than that of a private entity; that is, it attempts to use the liability of a private entity as a ceiling. Again, nothing in Burr, Franchise Tax Board, or Loeffler supports such a result.
Finally, we hesitate to engraft language from § 1346(b) onto the sue-and-be-sued clause when Congress, in § 2679(a), expressly set out how the former provision would limit the latter. As provided in § 2679(a), § 1346(b) limits sue-and-be-sued waivers for claims that are "cognizable" under § 1346(b). Thus, § 2679(a) contemplates that a sue-and-be-sued waiver could encompass claims not cognizable under § 1346(b) and render an agency subject to suit unconstrained by the express limitations of the FTCA. FDIC's constructiontaken to its logical conclusionwould not permit this result because it would render coextensive the scope of the waivers contained in § 1346(b) and sue-and-be-sued clauses generally. Had Congress wished to achieve that outcome, it surely would not have employed the language it did in § 2679(a). See Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253-254 (1992) ("[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there"). Because "[n]o showing has been made to overcome [the] presumption" that the sue-and-be-sued clause "fully waived" FSLIC's immunity in this instance, Franchise Tax Board, supra, at 520; International Primate Protection League, 500 U. S., at 86, n. 8, we hold that FSLIC's sue-and-be-sued clause waives the agency's sovereign immunity for Meyer's constitutional tort claim.
III
Although we have determined that Meyer's claim falls within the sue-and-be-sued waiver, our inquiry does not end at this point. Here we part ways with the Ninth Circuit, which determined that Meyer had a cause of action for damages against FSLIC because there had been a waiver of sovereign *484 immunity. 944 F.2d, at 572. The Ninth Circuit's reasoning conflates two "analytically distinct" inquiries. United States v. Mitchell, 463 U. S., at 218. The first inquiry is whether there has been a waiver of sovereign immunity. If there has been such a waiver, as in this case, the second inquiry comes into playthat is, whether the source of substantive law upon which the claimant relies provides an avenue for relief. Id., at 216-217. It is to this second inquiry that we now turn.
Meyer bases his due process claim on our decision in Bivens, which held that an individual injured by a federal agent's alleged violation of the Fourth Amendment may bring an action for damages against the agent. 403 U.S., at 397. In our most recent decisions, we have "responded cautiously to suggestions that Bivens remedies be extended into new contexts." Schweiker v. Chilicky, 487 U.S. 412, 421 (1988).[9] In this case, Meyer seeks a significant extension of Bivens: He asks us to expand the category of defendants against whom Bivens-type actions may be brought to include not only federal agents, but federal agencies as well.
We know of no Court of Appeals decision, other than the Ninth Circuit's below, that has implied a Bivens-type cause of action directly against a federal agency. Meyer recognizes the absence of authority supporting his position, but argues that the "logic" of Bivens would support such a remedy. We disagree. In Bivens, the petitioner sued the agents of the Federal Bureau of Narcotics who allegedly violated his rights, not the Bureau itself. 403 U.S., at 389-390. *485 Here, Meyer brought precisely the claim that the logic of Bivens supportsa Bivens claim for damages against Pattullo, the FSLIC employee who terminated him.[10]
An additional problem with Meyer's "logic" argument is the fact that we implied a cause of action against federal officials in Bivens in part because a direct action against the Government was not available. Id., at 410 (Harlan, J., concurring in judgment). In essence, Meyer asks us to imply a damages action based on a decision that presumed the absence of that very action.
Meyer's real complaint is that Pattullo, like many Bivens defendants, invoked the protection of qualified immunity. But Bivens clearly contemplated that official immunity would be raised. Id., at 397 (noting that "the District Court [had] ruled that . . . respondents were immune from liability by virtue of their official position"). More importantly, Meyer's proposed "solution"essentially the circumvention of qualified immunitywould mean the evisceration of the Bivens remedy, rather than its extension. It must be remembered that the purpose of Bivens is to deter the officer. See Carlson v. Green, 446 U.S. 14, 21 (1980) ("Because the Bivens remedy is recoverable against individuals, it is a more effective deterrent than the FTCA remedy against the United States"). If we were to imply a damages action directly against federal agencies, thereby permitting claimants to bypass qualified immunity, there would be no reason for aggrieved parties to bring damages actions against individual officers. Under Meyer's regime, the deterrent effects of the Bivens remedy would be lost.
*486 Finally, a damages remedy against federal agencies would be inappropriate even if such a remedy were consistent with Bivens. Here, unlike in Bivens, there are "special factors counselling hesitation" in the creation of a damages remedy. Bivens, 403 U. S., at 396. If we were to recognize a direct action for damages against federal agencies, we would be creating a potentially enormous financial burden for the Federal Government. Meyer disputes this reasoning and argues that the Federal Government already expends significant resources indemnifying its employees who are sued under Bivens. Meyer's argument implicitly suggests that the funds used for indemnification could be shifted to cover the direct liability of federal agencies. That may or may not be true, but decisions involving "`federal fiscal policy'" are not ours to make. Ibid. (quoting United States v. Standard Oil Co. of Cal., 332 U.S. 301, 311 (1947)). We leave it to Congress to weigh the implications of such a significant expansion of Government liability.[11]
IV
An extension of Bivens to agencies of the Federal Government is not supported by the logic of Bivens itself. We therefore hold that Meyer had no Bivens cause of action for damages against FSLIC. Accordingly, the judgment below is reversed.[12]
So ordered.
| In we implied a cause of action for damages against federal agents who allegedly violated the Constitution Today we are asked to imply a similar cause of action directly against an agency of the Federal Government Because the logic of itself does not support such an extension, we decline to take this step I On April 13, 1982, the California Savings and Loan Commissioner seized Fidelity Savings and Loan Association (Fidelity), a California-chartered thrift institution, and appointed the Federal Savings and Loan Insurance Corporation (FSLIC) to serve as Fidelity's receiver under state law That same day, the Federal Home Loan Bank appointed FSLIC to serve as Fidelity's receiver under federal law In its capacity as receiver, FSLIC had broad authority to "take such action as may be necessary to put [the thrift] in a sound solvent condition" as amended, 12 US C 1729(b)(1)(A)(ii) (repealed 1989) Pursuant to its general policy of terminating the employment of a failed thrift's senior management, FSLIC, through its special representative Robert L Pattullo, terminated respondent John H Meyer, a senior Fidelity officer Approximately one year later, Meyer filed this lawsuit against a number of defendants, including FSLIC and Pattullo, *474 in the United States District Court for the Northern District of California At the time of trial, Meyer's sole claim against FSLIC and Pattullo was that his summary discharge deprived him of a property right (his right to continued employment under California law) without due process of law in violation of the Fifth Amendment In making this claim, Meyer relied upon which implied a cause of action for damages against federal agents who allegedly violated the Fourth Amendment The jury returned a $130,000 verdict against FSLIC, but found in favor of Pattullo on qualified immunity grounds Petitioner Federal Deposit Insurance Corporation (FDIC), FSLIC's statutory successor,[1] appealed to the Court of Appeals for the Ninth Circuit, which affirmed First, the Court of Appeals determined that the Federal Tort Claims Act (FTCA or Act), 28 US C 1(b), 271-280, did not provide Meyer's exclusive -572 Although the FTCA remedy is "exclusive" for all "claims which are cognizable under section 1(b)," 28 US C 279(a), the Court of Appeals decided that Meyer's claim was not cognizable under 1(b) 572 The court then concluded that the "sue-and-be-sued" clause contained in FSLIC's organic statute, 12 US C 1725(c)(4) (repealed 1989), constituted a waiver of sovereign immunity for Meyer's claim and entitled him to maintain an action against the agency 944 F2d, at 5, 572 Finally, on the merits, the court affirmed the jury's conclusion that Meyer had been deprived of due process when he was summarily discharged without notice and a hearing Id, We granted certiorari to consider *475 the validity of the damages award against FSLIC 507 US 983 [2] II Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit v Frank, 48 US 549, ; Federal Housing Administration v 309 US 242, Sovereign immunity is jurisdictional in nature Indeed, the "terms of [the United States'] consent to be sued in any court define that court's jurisdiction to entertain the suit" United States v Sherwood, 312 US 584, See also United States v 43 US 20, Therefore, we must first decide whether FSLIC's immunity has been waived A When Congress created FSLIC in 19, it empowered the agency "[t]o sue and be sued, complain and defend, in any court of competent jurisdiction" 12 US C 1725(c)(4) (repealed 1989)[3] By permitting FSLIC to sue and be sued, Congress effected a "broad" waiver of FSLIC's immunity from suit United States v Nordic Village, Inc, 503 US 30, In 194, Congress passed the FTCA, which waived the sovereign immunity of the United States for certain torts committed by federal employees 28 US C *47 1(b)[4] In order to "place torts of `suable' agencies upon precisely the same footing as torts of `nonsuable' agencies," Congress, through the FTCA, limited the scope of sue-and-be-sued waivers such as that contained in FSLIC's organic statute The FTCA limitation provides: "The authority of any federal agency to sue and be sued in its own name shall not be construed to authorize suits against such federal agency on claims which are cognizable under section 1(b) of this title, and the remedies provided by this title in such cases shall be exclusive" 28 US C 279(a) Thus, if a suit is "cognizable" under 1(b) of the FTCA, the FTCA remedy is "exclusive" and the federal agency cannot be sued "in its own name," despite the existence of a sue-and-be-sued clause The first question, then, is whether Meyer's claim is "cognizable" under 1(b) The term "cognizable" is not defined in the Act In the absence of such a definition, we construe a statutory term in accordance with its ordinary or natural meaning Smith v United States, 508 US 223, Cognizable ordinarily means "[c]apable of being tried or examined before a designated tribunal; within [the] jurisdiction of [a] court or power given to [a] court to adjudicate [a] controversy" Black's Law Dictionary 259 (th ed 1990) Under this definition, the inquiry focuses on the jurisdictional grant provided by 1(b) *477 Section 1(b) grants the federal district courts jurisdiction over a certain category of claims for which the United States has waived its sovereign immunity and "render[ed]" itself liable v United States, 39 US 1, This category includes claims that are: "[1] against the United States, [2] for money damages, [3] for injury or loss of property, or personal injury or death [4] caused by the negligent or wrongful act or omission of any employee of the Government [5] while acting within the scope of his office or employment, [] under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred" 28 US C 1(b) A claim comes within this jurisdictional grantand thus is "cognizable" under 1(b)if it is actionable under 1(b) And a claim is actionable under 1(b) if it alleges the six elements outlined above See ( 279(a) limits the scope of sue-and-be-sued waivers "in the context of suits for which [Congress] provided a cause of action under the FTCA" )[5] Applying these principles to this case, we conclude that Meyer's constitutional tort claim is not "cognizable" under 1(b) because it is not actionable under 1(b)that is, 1(b) does not provide a cause of action for such a claim As noted above, to be actionable under 1(b), a claim must allege, inter alia, that the United States "would be liable to the claimant" as "a private person" "in accordance with the law of the place where the act or omission occurred" A constitutional tort claim such as Meyer's could *478 not contain such an allegation Indeed, we have consistently held that 1(b)'s reference to the "law of the place" means law of the Statethe source of substantive liability under the FTCA See, e g, Miree v DeKalb County, 433 US 25, 29, n 4 ; United States v Muniz, 374 US 150, (193); at -7, 11; Rayonier Inc v United States, 352 US 315, By definition, federal law, not state law, provides the source of liability for a claim alleging the deprivation of a federal constitutional right To use the terminology of the United States simply has not rendered itself liable under 1(b) for constitutional tort claims Thus, because Meyer's constitutional tort claim is not cognizable under 1(b), the FTCA does not constitute his "exclusive" His claim was therefore properly brought against FSLIC "in its own name" 28 US C 279(a) FDIC argues that by exposing a sue-and-be-sued agency to constitutional tort claims, our interpretation of "cognizability" runs afoul of Congress' understanding that 279(a) would place the torts of "suable" and "nonsuable" agencies on the same footing See 48 U S, FDIC would deem all claims "sounding in tort"including constitutional torts"cognizable" under 1(b) Under FDIC's reading of the statute, only the portion of 1(b) that describes a "tort"i e, "claims against the United States, for money damages, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government"would govern cognizability The remaining portion of 1(b) would simply describe a "limitation" on the waiver of sovereign immunity[] *479 We reject this reading of the statute As we have already noted, 1(b) describes the scope of jurisdiction by reference to claims for which the United States has waived its immunity and rendered itself liable FDIC seeks to uncouple the scope of jurisdiction under 1(b) from the scope of the waiver of sovereign immunity under 1(b) Under its interpretation, the jurisdictional grant would be broad (covering all claims sounding in tort), but the waiver of sovereign immunity would be narrow (covering only those claims for which a private person would be held liable under state law) There simply is no basis in the statutory language for the parsing FDIC suggests Section 279(a)'s reference to claims "cognizable" under 1(b) means cognizable under the whole of 1(b), not simply a portion of it[7] *480 B Because Meyer's claim is not cognizable under 1(b), we must determine whether FSLIC's sue-and-be-sued clause waives sovereign immunity for the claim FDIC argues that the scope of the sue-and-be-sued waiver should be limited to cases in which FSLIC would be subjected to liability as a private entity A constitutional tort claim such as Meyer's, FDIC argues, would fall outside the sue-and-be-sued waiver because the Constitution generally does not restrict the conduct of private entities In essence, FDIC asks us to engraft a portion of the sixth element of 1(b)liability "under circumstances where the United States, if a private person, would be liable to the claimant"onto the sue-and-be-sued clause On its face, the sue-and-be-sued clause contains no such limitation To the contrary, its terms are simple and broad: FSLIC "shall have power [t]o sue and be sued, complain and defend, in any court of competent jurisdiction in the United States" 12 US C 1725(c)(4) (repealed 1989) In the past, we have recognized that such sue-and-be-sued waivers are to be "liberally construed," Federal Housing Administration v 309 U S, at 245, notwithstanding the general rule that waivers of sovereign immunity are to be read narrowly in favor of the sovereign See United States v Nordic Village, Inc, 503 U S, at makes it clear that sue-and-be-sued clauses cannot be limited by implication unless there has been a "clea[r] show[ing] that certain types of suits are not consistent with the statutory or constitutional scheme, that an implied restriction of the general authority is necessary to avoid grave interference with the performance of a governmental function, or that for other reasons it was plainly the purpose of Congress to use the `sue and be sued' clause in a narrow sense" 309 US, at 245 *481 See also 48 U S, at 51; Franchise Tax Bd of Cal v Postal Service, 47 US 512, Absent such a showing, agencies "authorized to `sue and be sued' are presumed to have fully waived immunity" International Primate Protection v Administrators of Tulane Ed Fund, 500 US 72, 8, n 8 (describing the holding in ) FDIC does not attempt to make the "clear" showing of congressional purpose necessary to overcome the presumption that immunity has been waived[8] Instead, it bases its argument solely on language in our cases suggesting that federal agencies should bear the burdens of suit borne by private entities Typical of these cases is which stated that "when Congress launche[s] a governmental agency into the commercial world and endow[s] it with authority to `sue or be sued,' that agency is not less amenable to judicial process than a private enterprise under like circumstances would be" 309 US, at 245 See also Franchise Tax Bd, ("[U]nder not only must we liberally construe the sue-and-be-sued clause, but also we must presume that the [Postal] Service's liability is the same as that of any other business") ; (through a sue-and-be-sued clause, "Congress waived [the Postal Service's] immunity from interest awards, authorizing recovery of interest from the Postal Service to the extent that interest is recoverable against a private party as a normal incident of suit" ) When read in context, however, it is clear that Franchise Tax and do not support the limitation FDIC proposes In these cases, the claimants sought to subject the agencies to a particular suit or incident of suit to which private businesses are amenable as a matter of course *482 In for example, the claimant, who had obtained a judgment against an employee of the Federal Housing Administration (FHA), served the FHA with a writ to garnish the employee's wages 309 US, at 243, 248, n 11 Similarly, in Franchise Tax the claimant directed the United States Postal Service to withhold amounts of delinquent state income taxes from the wages of four Postal Service employees 47 US, at 513 And in the claimant, who was discharged from his employment as a rural letter carrier, sought prejudgment interest as an incident of his successful suit against the Postal Service under Title VII of the Civil Rights Act of 194, 42 US C 2000e et seq 48 U S, at 551-552 Because the claimant in each of these cases was seeking to hold the agency liable just like "any other business," Franchise Tax it was only natural for the Court to look to the liability of private businesses for guidance It stood to reason that the agency could not escape the liability a private enterprise would face in similar circumstances Here, by contrast, Meyer does not seek to hold FSLIC liable just like any other business Indeed, he seeks to impose on FSLIC a form of tort liabilitytort liability arising under the Constitutionthat generally does not apply to private entities Franchise Tax and simply do not speak to the issue of sovereign immunity in the context of such a constitutional tort claim Moreover, nothing in these decisions suggests that the liability of a private enterprise should serve as the outer boundary of the sue-and-be-sued waiver Rather, those cases "merely involve[d] a determination of whether or not [the particular suit or incident of suit] [came] within the scope of" the sue-and-be-sued waiver at When we determined that the particular suit or incident of suit fell within the sue-and-be-sued waiver, we looked to the liability of a private enterprise as a floor below which the agency's liability could not fall In the present case, by contrast, *483 FDIC argues that a sue-and-be-sued agency's liability should never be greater than that of a private entity; that is, it attempts to use the liability of a private entity as a ceiling Again, nothing in Franchise Tax or supports such a result Finally, we hesitate to engraft language from 1(b) onto the sue-and-be-sued clause when Congress, in 279(a), expressly set out how the former provision would limit the latter As provided in 279(a), 1(b) limits sue-and-be-sued waivers for claims that are "cognizable" under 1(b) Thus, 279(a) contemplates that a sue-and-be-sued waiver could encompass claims not cognizable under 1(b) and render an agency subject to suit unconstrained by the express limitations of the FTCA FDIC's constructiontaken to its logical conclusionwould not permit this result because it would render coextensive the scope of the waivers contained in 1(b) and sue-and-be-sued clauses generally Had Congress wished to achieve that outcome, it surely would not have employed the language it did in 279(a) See Connecticut Nat Bank v Germain, 503 US 249, Because "[n]o showing has been made to overcome [the] presumption" that the sue-and-be-sued clause "fully waived" FSLIC's immunity in this instance, Franchise Tax ; International Primate Protection 500 U S, at 8, n 8, we hold that FSLIC's sue-and-be-sued clause waives the agency's sovereign immunity for Meyer's constitutional tort claim III Although we have determined that Meyer's claim falls within the sue-and-be-sued waiver, our inquiry does not end at this point Here we part ways with the Ninth Circuit, which determined that Meyer had a cause of action for damages against FSLIC because there had been a waiver of sovereign *484 immunity 944 F2d, at 572 The Ninth Circuit's reasoning conflates two "analytically distinct" inquiries United States v 43 U S, at 8 The first inquiry is whether there has been a waiver of sovereign immunity If there has been such a waiver, as in this case, the second inquiry comes into playthat is, whether the source of substantive law upon which the claimant relies provides an avenue for relief Id, at -7 It is to this second inquiry that we now turn Meyer bases his due process claim on our decision in which held that an individual injured by a federal agent's alleged violation of the Fourth Amendment may bring an action for damages against the agent 403 US, In our most recent decisions, we have "responded cautiously to suggestions that remedies be extended into new contexts" Schweiker v Chilicky, 487 US 412, [9] In this case, Meyer seeks a significant extension of : He asks us to expand the category of defendants against whom -type actions may be brought to include not only federal agents, but federal agencies as well We know of no Court of Appeals decision, other than the Ninth Circuit's below, that has implied a -type cause of action directly against a federal agency Meyer recognizes the absence of authority supporting his position, but argues that the "logic" of would support such a We disagree In the petitioner sued the agents of the Federal Bureau of Narcotics who allegedly violated his rights, not the Bureau itself 403 US, at 389-390 *485 Here, Meyer brought precisely the claim that the logic of supportsa claim for damages against Pattullo, the FSLIC employee who terminated him[10] An additional problem with Meyer's "logic" argument is the fact that we implied a cause of action against federal officials in in part because a direct action against the Government was not available Id, (Harlan, J, concurring in judgment) In essence, Meyer asks us to imply a damages action based on a decision that presumed the absence of that very action Meyer's real complaint is that Pattullo, like many defendants, invoked the protection of qualified immunity But clearly contemplated that official immunity would be raised Id, (noting that "the District Court [had] ruled that respondents were immune from liability by virtue of their official position") More importantly, Meyer's proposed "solution"essentially the circumvention of qualified immunitywould mean the evisceration of the remedy, rather than its extension It must be remembered that the purpose of is to deter the officer See Carlson v Green, 44 US 14, If we were to imply a damages action directly against federal agencies, thereby permitting claimants to bypass qualified immunity, there would be no reason for aggrieved parties to bring damages actions against individual officers Under Meyer's regime, the deterrent effects of the remedy would be lost *48 Finally, a damages remedy against federal agencies would be inappropriate even if such a remedy were consistent with Here, unlike in there are "special factors counselling hesitation" in the creation of a damages 403 U S, at 39 If we were to recognize a direct action for damages against federal agencies, we would be creating a potentially enormous financial burden for the Federal Government Meyer disputes this reasoning and argues that the Federal Government already expends significant resources indemnifying its employees who are sued under Meyer's argument implicitly suggests that the funds used for indemnification could be shifted to cover the direct liability of federal agencies That may or may not be true, but decisions involving "`federal fiscal policy'" are not ours to make Ibid ) We leave it to Congress to weigh the implications of such a significant expansion of Government liability[11] IV An extension of to agencies of the Federal Government is not supported by the logic of itself We therefore hold that Meyer had no cause of action for damages against FSLIC Accordingly, the judgment below is reversed[12] So ordered |
Justice Thomas | majority | false | Ohio v. American Express Co. | 2018-06-25T00:00:00 | null | https://www.courtlistener.com/opinion/4510530/ohio-v-american-express-co/ | https://www.courtlistener.com/api/rest/v3/clusters/4510530/ | 2,018 | null | null | null | null | American Express Company and American Express
Travel Related Services Company (collectively, Amex)
provide credit-card services to both merchants and card-
holders. When a cardholder buys something from a mer-
chant who accepts Amex credit cards, Amex processes the
transaction through its network, promptly pays the mer-
chant, and subtracts a fee. If a merchant wants to accept
Amex credit cards—and attract Amex cardholders to its
business—Amex requires the merchant to agree to an
antisteering contractual provision. The antisteering pro-
vision prohibits merchants from discouraging customers
from using their Amex card after they have already en-
tered the store and are about to buy something, thereby
avoiding Amex’s fee. In this case, we must decide whether
Amex’s antisteering provisions violate federal antitrust
law. We conclude they do not.
I
A
Credit cards have become a primary way that consum-
ers in the United States purchase goods and services.
2 OHIO v. AMERICAN EXPRESS CO.
Opinion of the Court
When a cardholder uses a credit card to buy something
from a merchant, the transaction is facilitated by a credit-
card network. The network provides separate but inter-
related services to both cardholders and merchants. For
cardholders, the network extends them credit, which
allows them to make purchases without cash and to defer
payment until later. Cardholders also can receive rewards
based on the amount of money they spend, such as airline
miles, points for travel, or cash back. For merchants, the
network allows them to avoid the cost of processing trans-
actions and offers them quick, guaranteed payment. This
saves merchants the trouble and risk of extending credit
to customers, and it increases the number and value of
sales that they can make.
By providing these services to cardholders and mer-
chants, credit-card companies bring these parties together,
and therefore operate what economists call a “two-sided
platform.” As the name implies, a two-sided platform
offers different products or services to two different groups
who both depend on the platform to intermediate between
them. See Evans & Schmalensee, Markets With Two-
Sided Platforms, 1 Issues in Competition L. & Pol’y 667
(2008) (Evans & Schmalensee); Evans & Noel, Defining
Antitrust Markets When Firms Operate Two-Sided Plat-
forms, 2005 Colum. Bus. L. Rev. 667, 668 (Evans & Noel);
Filistrucchi, Geradin, Van Damme, & Affeldt, Market
Definition in Two-Sided Markets: Theory and Practice, 10
J. Competition L. & Econ. 293, 296 (2014) (Filistrucchi).
For credit cards, that interaction is a transaction. Thus,
credit-card networks are a special type of two-sided plat-
form known as a “transaction” platform. See id., at 301,
304, 307; Evans & Noel 676–678. The key feature of
transaction platforms is that they cannot make a sale to
one side of the platform without simultaneously making a
sale to the other. See Klein, Lerner, Murphy, & Plache,
Competition in Two-Sided Markets: The Antitrust Eco-
Cite as: 585 U. S. ____ (2018) 3
Opinion of the Court
nomics of Payment Card Interchange Fees, 73 Antitrust
L. J. 571, 580, 583 (2006) (Klein). For example, no credit-
card transaction can occur unless both the merchant and
the cardholder simultaneously agree to use the same
credit-card network. See Filistrucchi 301.
Two-sided platforms differ from traditional markets in
important ways. Most relevant here, two-sided platforms
often exhibit what economists call “indirect network ef-
fects.” Evans & Schmalensee 667. Indirect network ef-
fects exist where the value of the two-sided platform to one
group of participants depends on how many members of a
different group participate. D. Evans & R. Schmalensee,
Matchmakers: The New Economics of Multisided Plat-
forms 25 (2016). In other words, the value of the services
that a two-sided platform provides increases as the num-
ber of participants on both sides of the platform increases.
A credit card, for example, is more valuable to cardholders
when more merchants accept it, and is more valuable to
merchants when more cardholders use it. See Evans &
Noel 686–687; Klein 580, 584. To ensure sufficient partic-
ipation, two-sided platforms must be sensitive to the
prices that they charge each side. See Evans & Schma-
lensee 675; Evans & Noel 680; Muris, Payment Card
Regulation and the (Mis)Application of the Economics of
Two-Sided Markets, 2005 Colum. Bus. L. Rev. 515, 532–
533 (Muris); Rochet & Tirole, Platform Competition in
Two-Sided Markets, 1 J. Eur. Econ. Assn. 990, 1013
(2003). Raising the price on side A risks losing participa-
tion on that side, which decreases the value of the plat-
form to side B. If participants on side B leave due to this
loss in value, then the platform has even less value to side
A—risking a feedback loop of declining demand. See
Evans & Schmalensee 675; Evans & Noel 680–681. Two-
sided platforms therefore must take these indirect net-
work effects into account before making a change in price
on either side. See Evans & Schmalensee 675; Evans &
4 OHIO v. AMERICAN EXPRESS CO.
Opinion of the Court
Noel 680–681.1
Sometimes indirect network effects require two-sided
platforms to charge one side much more than the other.
See Evans & Schmalensee 667, 675, 681, 690–691; Evans
& Noel 668, 691; Klein 585; Filistrucchi 300. For two-
sided platforms, “ ‘the [relative] price structure matters,
and platforms must design it so as to bring both sides on
board.’ ” Evans & Schmalensee 669 (quoting Rochet &
Tirole, Two-Sided Markets: A Progress Report, 37 RAND
J. Econ. 645, 646 (2006)). The optimal price might require
charging the side with more elastic demand a below-cost
(or even negative) price. See Muris 519, 550; Klein 579;
Evans & Schmalensee 675; Evans & Noel 681. With credit
cards, for example, networks often charge cardholders a
lower fee than merchants because cardholders are more
price sensitive.2 See Muris 522; Klein 573–574, 585, 595.
In fact, the network might well lose money on the card-
holder side by offering rewards such as cash back, airline
miles, or gift cards. See Klein 587; Evans & Schmalensee
672. The network can do this because increasing the
number of cardholders increases the value of accepting the
card to merchants and, thus, increases the number of
——————
1 Ina competitive market, indirect network effects also encourage
companies to take increased profits from a price increase on side A and
spend them on side B to ensure more robust participation on that side
and to stem the impact of indirect network effects. See Evans &
Schmalensee 688; Evans & Noel 670–671, 695. Indirect network effects
thus limit the platform’s ability to raise overall prices and impose a
check on its market power. See Evans & Schmalensee 688; Evans &
Noel 695.
2 “Cardholders are more price-sensitive because many consumers
have multiple payment methods, including alternative payment cards.
Most merchants, by contrast, cannot accept just one major card because
they are likely to lose profitable incremental sales if they do not take
[all] the major payment cards. Because most consumers do not carry
all of the major payment cards, refusing to accept a major card may
cost the merchant substantial sales.” Muris 522.
Cite as: 585 U. S. ____ (2018) 5
Opinion of the Court
merchants who accept it. Muris 522; Evans & Schma-
lensee 692. Networks can then charge those merchants a
fee for every transaction (typically a percentage of the
purchase price). Striking the optimal balance of the prices
charged on each side of the platform is essential for two-
sided platforms to maximize the value of their services
and to compete with their rivals.
B
Amex, Visa, MasterCard, and Discover are the four
dominant participants in the credit-card market. Visa,
which is by far the largest, has 45% of the market as
measured by transaction volume.3 Amex and MasterCard
trail with 26.4% and 23.3%, respectively, while Discover
has just 5.3% of the market.
Visa and MasterCard have significant structural ad-
vantages over Amex. Visa and MasterCard began as bank
cooperatives and thus almost every bank that offers credit
cards is in the Visa or MasterCard network. This makes it
very likely that the average consumer carries, and the
average merchant accepts, Visa or MasterCard. As a
result, the vast majority of Amex cardholders have a Visa
or MasterCard, but only a small number of Visa and Master-
Card cardholders have an Amex. Indeed, Visa and
MasterCard account for more than 432 million cards in
circulation in the United States, while Amex has only 53
million. And while 3.4 million merchants at 6.4 million
locations accept Amex, nearly three million more locations
accept Visa, MasterCard, and Discover.4
——————
3 Allfigures are accurate as of 2013.
4 Discover entered the credit-card market several years after Amex,
Visa, and MasterCard. It nonetheless managed to gain a foothold
because Sears marketed Discover to its already significant base of
private-label cardholders. Discover’s business model shares certain
features with Amex, Visa, and MasterCard. Like Amex, Discover
interacts directly with its cardholders. But like Visa and MasterCard,
6 OHIO v. AMERICAN EXPRESS CO.
Opinion of the Court
Amex competes with Visa and MasterCard by using a
different business model. While Visa and MasterCard
earn half of their revenue by collecting interest from their
cardholders, Amex does not. Amex instead earns most of
its revenue from merchant fees. Amex’s business model
thus focuses on cardholder spending rather than card-
holder lending. To encourage cardholder spending, Amex
provides better rewards than other networks. Due to its
superior rewards, Amex tends to attract cardholders who
are wealthier and spend more money. Merchants place a
higher value on these cardholders, and Amex uses this
advantage to recruit merchants.
Amex’s business model has significantly influenced the
credit-card market. To compete for the valuable cardhold-
ers that Amex attracts, both Visa and MasterCard have
introduced premium cards that, like Amex, charge mer-
chants higher fees and offer cardholders better rewards.
To maintain their lower merchant fees, Visa and Master-
Card have created a sliding scale for their various cards—
charging merchants less for low-reward cards and more
for high-reward cards. This differs from Amex’s strategy,
which is to charge merchants the same fee no matter the
rewards that its card offers. Another way that Amex has
influenced the credit-card market is by making banking
and card-payment services available to low-income indi-
viduals, who otherwise could not qualify for a credit card
and could not afford the fees that traditional banks
charge. See 2 Record 3835–3837, 4527–4529. In sum,
Amex’s business model has stimulated competitive inno-
vations in the credit-card market, increasing the volume of
transactions and improving the quality of the services.
Despite these improvements, Amex’s business model
sometimes causes friction with merchants. To maintain
——————
Discover uses banks that cooperate with its network to interact with
merchants.
Cite as: 585 U. S. ____ (2018) 7
Opinion of the Court
the loyalty of its cardholders, Amex must continually
invest in its rewards program. But, to fund those invest-
ments, Amex must charge merchants higher fees than its
rivals. Even though Amex’s investments benefit mer-
chants by encouraging cardholders to spend more money,
merchants would prefer not to pay the higher fees. One
way that merchants try to avoid them, while still enticing
Amex’s cardholders to shop at their stores, is by dissuad-
ing cardholders from using Amex at the point of sale. This
practice is known as “steering.”
Amex has prohibited steering since the 1950s by placing
antisteering provisions in its contracts with merchants.
These antisteering provisions prohibit merchants from
implying a preference for non-Amex cards; dissuading
customers from using Amex cards; persuading customers
to use other cards; imposing any special restrictions,
conditions, disadvantages, or fees on Amex cards; or pro-
moting other cards more than Amex. The antisteering
provisions do not, however, prevent merchants from steer-
ing customers toward debit cards, checks, or cash.
C
In October 2010, the United States and several States
(collectively, plaintiffs) sued Amex, claiming that its an-
tisteering provisions violate §1 of the Sherman Act, 26
Stat. 209, as amended, 15 U.S. C. §1.5 After a 7-week
trial, the District Court agreed that Amex’s antisteering
provisions violate §1. United States v. American Express
Co., 88 F. Supp. 3d 143, 151–152 (EDNY 2015). It found
that the credit-card market should be treated as two
separate markets—one for merchants and one for card-
holders. See id., at 171–175. Evaluating the effects on the
——————
5 Plaintiffs
also sued Visa and MasterCard, claiming that their anti-
steering provisions violated §1. But Visa and MasterCard voluntarily
revoked their antisteering provisions and are no longer parties to this
case.
8 OHIO v. AMERICAN EXPRESS CO.
Opinion of the Court
merchant side of the market, the District Court found
that Amex’s antisteering provisions are anticompetitive
because they result in higher merchant fees. See id., at
195–224.
The Court of Appeals for the Second Circuit reversed.
United States v. American Express Co., 838 F.3d 179, 184
(2016). It concluded that the credit-card market is one
market, not two. Id., at 196–200. Evaluating the credit-
card market as a whole, the Second Circuit concluded that
Amex’s antisteering provisions were not anticompetitive
and did not violate §1. See id., at 200–206.
We granted certiorari, 583 U. S. ___ (2017), and now
affirm.
II
Section 1 of the Sherman Act prohibits “[e]very contract,
combination in the form of trust or otherwise, or conspir-
acy, in restraint of trade or commerce among the several
States.” 15 U.S. C. §1. This Court has long recognized
that, “[i]n view of the common law and the law in this
country” when the Sherman Act was passed, the phrase
“restraint of trade” is best read to mean “undue restraint.”
Standard Oil Co. of N. J. v. United States, 221 U.S. 1, 59–
60 (1911). This Court’s precedents have thus understood
§1 “to outlaw only unreasonable restraints.” State Oil Co.
v. Khan, 522 U.S. 3, 10 (1997) (emphasis added).
Restraints can be unreasonable in one of two ways. A
small group of restraints are unreasonable per se because
they “ ‘ “always or almost always tend to restrict competi-
tion and decrease output.” ’ ” Business Electronics Corp. v.
Sharp Electronics Corp., 485 U.S. 717, 723 (1988). Typi-
cally only “horizontal” restraints—restraints “imposed by
agreement between competitors”—qualify as unreasonable
per se. Id., at 730. Restraints that are not unreasonable
per se are judged under the “rule of reason.” Id., at 723.
The rule of reason requires courts to conduct a fact-specific
Cite as: 585 U. S. ____ (2018) 9
Opinion of the Court
assessment of “market power and market structure . . . to
assess the [restraint]’s actual effect” on competition.
Copperweld Corp. v. Independence Tube Corp., 467 U.S.
752, 768 (1984). The goal is to “distinguis[h] between
restraints with anticompetitive effect that are harmful to
the consumer and restraints stimulating competition that
are in the consumer’s best interest.” Leegin Creative
Leather Products, Inc. v. PSKS, Inc., 551 U.S. 877, 886
(2007).
In this case, both sides correctly acknowledge that
Amex’s antisteering provisions are vertical restraints—
i.e., restraints “imposed by agreement between firms at
different levels of distribution.” Business Electronics,
supra, at 730. The parties also correctly acknowledge
that, like nearly every other vertical restraint, the anti-
steering provisions should be assessed under the rule of
reason. See Leegin, supra, at 882; State Oil, supra, at 19;
Business Electronics, supra, at 726; Continental T. V., Inc.
v. GTE Sylvania Inc., 433 U.S. 36, 57 (1977).
To determine whether a restraint violates the rule of
reason, the parties agree that a three-step, burden-
shifting framework applies. Under this framework, the
plaintiff has the initial burden to prove that the chal-
lenged restraint has a substantial anticompetitive effect
that harms consumers in the relevant market. See 1 J.
Kalinowski, Antitrust Laws and Trade Regulation
§12.02[1] (2d ed. 2017) (Kalinowski); P. Areeda & H.
Hovenkamp, Fundamentals of Antitrust Law §15.02[B]
(4th ed. 2017) (Areeda & Hovenkamp); Capital Imaging
Assoc., P. C. v. Mohawk Valley Medical Associates, Inc.,
996 F.2d 537, 543 (CA2 1993). If the plaintiff carries its
burden, then the burden shifts to the defendant to show a
procompetitive rationale for the restraint. See 1 Kalinow-
ski §12.02[1]; Areeda & Hovenkamp §15.02[B]; Capital
Imaging Assoc., supra, at 543. If the defendant makes
this showing, then the burden shifts back to the plaintiff
10 OHIO v. AMERICAN EXPRESS CO.
Opinion of the Court
to demonstrate that the procompetitive efficiencies could
be reasonably achieved through less anticompetitive
means. See 1 Kalinowski §12.02[1]; Capital Imaging
Assoc., supra, at 543.
Here, the parties ask us to decide whether the plaintiffs
have carried their initial burden of proving that Amex’s
antisteering provisions have an anticompetitive effect.
The plaintiffs can make this showing directly or indirectly.
Direct evidence of anticompetitive effects would be “ ‘proof
of actual detrimental effects [on competition],’ ” FTC v.
Indiana Federation of Dentists, 476 U.S. 447, 460 (1986),
such as reduced output, increased prices, or decreased
quality in the relevant market, see 1 Kalinowski §12.02[2];
Craftsman Limousine, Inc. v. Ford Motor Co., 491 F.3d
381, 390 (CA8 2007); Virginia Atlantic Airways Ltd. v.
British Airways PLC, 257 F.3d 256, 264 (CA2 2001).
Indirect evidence would be proof of market power plus
some evidence that the challenged restraint harms compe-
tition. See 1 Kalinowski §12.02[2]; Tops Markets, Inc. v.
Quality Markets, Inc., 142 F.3d 90, 97 (CA2 1998); Span-
ish Broadcasting System of Fla. v. Clear Channel Commu-
nications, Inc., 376 F.3d 1065, 1073 (CA11 2004).
Here, the plaintiffs rely exclusively on direct evidence to
prove that Amex’s antisteering provisions have caused
anticompetitive effects in the credit-card market.6 To
assess this evidence, we must first define the relevant
market. Once defined, it becomes clear that the plaintiffs’
evidence is insufficient to carry their burden.
A
Because “[l]egal presumptions that rest on formalistic
distinctions rather than actual market realities are gener-
ally disfavored in antitrust law,” Eastman Kodak Co. v.
——————
6 Although the plaintiffs relied on indirect evidence below, they have
abandoned that argument in this Court. See Brief for United States 23,
n. 4 (citing Pet. for Cert. i, 18–25).
Cite as: 585 U. S. ____ (2018) 11
Opinion of the Court
Image Technical Services, Inc., 504 U.S. 451, 466–467
(1992), courts usually cannot properly apply the rule of
reason without an accurate definition of the relevant
market.7 “Without a definition of [the] market there is no
way to measure [the defendant’s] ability to lessen or de-
stroy competition.” Walker Process Equipment, Inc. v.
Food Machinery & Chemical Corp., 382 U.S. 172, 177
(1965); accord, 2 Kalinowski §24.01[4][a]. Thus, the rele-
vant market is defined as “the area of effective competi-
tion.” Ibid. Typically this is the “arena within which
significant substitution in consumption or production
occurs.” Areeda & Hovenkamp §5.02; accord, 2 Kalinow-
ski §24.02[1]; United States v. Grinnell Corp., 384 U. S.
——————
7 The plaintiffs argue that we need not define the relevant market in
this case because they have offered actual evidence of adverse effects on
competition—namely, increased merchant fees. See Brief for United
States 40–41 (citing FTC v. Indiana Federation of Dentists, 476 U.S.
447 (1986), and Catalano, Inc. v. Target Sales, Inc., 446 U.S. 643
(1980) (per curiam)). We disagree. The cases that the plaintiffs cite for
this proposition evaluated whether horizontal restraints had an ad-
verse effect on competition. See Indiana Federation of Dentists, supra,
at 450–451, 459 (agreement between competing dentists not to share X
rays with insurance companies); Catalano, supra, at 644–645, 650
(agreement among competing wholesalers not to compete on extending
credit to retailers). Given that horizontal restraints involve agree-
ments between competitors not to compete in some way, this Court
concluded that it did not need to precisely define the relevant market to
conclude that these agreements were anticompetitive. See Indiana
Federation of Dentists, supra, at 460–461; Catalano, supra, at 648–649.
But vertical restraints are different. See Arizona v. Maricopa County
Medical Soc., 457 U.S. 332, 348, n. 18 (1982); Leegin Creative Leather
Products, Inc. v. PSKS, Inc., 551 U.S. 877, 888 (2007). Vertical re-
straints often pose no risk to competition unless the entity imposing
them has market power, which cannot be evaluated unless the Court
first defines the relevant market. See id., at 898 (noting that a vertical
restraint “may not be a serious concern unless the relevant entity has
market power”); Easterbrook, Vertical Arrangements and the Rule of
Reason, 53 Antitrust L. J. 135, 160 (1984) (“[T]he possibly anticompeti-
tive manifestations of vertical arrangements can occur only if there is
market power”).
12 OHIO v. AMERICAN EXPRESS CO.
Opinion of the Court
563, 571 (1966). But courts should “combin[e]” different
products or services into “a single market” when “that
combination reflects commercial realities.” Id., at 572; see
also Brown Shoe Co. v. United States, 370 U.S. 294, 336–
337 (1962) (pointing out that “the definition of the relevant
market” must “ ‘correspond to the commercial realities’ of
the industry”).
As explained, credit-card networks are two-sided plat-
forms. Due to indirect network effects, two-sided plat-
forms cannot raise prices on one side without risking a
feedback loop of declining demand. See Evans & Schma-
lensee 674–675; Evans & Noel 680–681. And the fact that
two-sided platforms charge one side a price that is below
or above cost reflects differences in the two sides’ demand
elasticity, not market power or anticompetitive pricing.
See Klein 574, 595, 598, 626. Price increases on one side
of the platform likewise do not suggest anticompetitive
effects without some evidence that they have increased the
overall cost of the platform’s services. See id., at 575, 594,
626. Thus, courts must include both sides of the plat-
form—merchants and cardholders—when defining the
credit-card market.
To be sure, it is not always necessary to consider both
sides of a two-sided platform. A market should be treated
as one sided when the impacts of indirect network effects
and relative pricing in that market are minor. See Fil-
istrucchi 321–322. Newspapers that sell advertisements,
for example, arguably operate a two-sided platform be-
cause the value of an advertisement increases as more
people read the newspaper. Id., at 297, 315; Klein 579.
But in the newspaper-advertisement market, the indirect
networks effects operate in only one direction; newspaper
readers are largely indifferent to the amount of advertis-
ing that a newspaper contains. See Filistrucchi 321, 323,
and n. 99; Klein 583. Because of these weak indirect
network effects, the market for newspaper advertising
Cite as: 585 U. S. ____ (2018) 13
Opinion of the Court
behaves much like a one-sided market and should be
analyzed as such. See Filistrucchi 321; Times-Picayune
Publishing Co. v. United States, 345 U.S. 594, 610 (1953).
But two-sided transaction platforms, like the credit-card
market, are different. These platforms facilitate a single,
simultaneous transaction between participants. For credit
cards, the network can sell its services only if a mer-
chant and cardholder both simultaneously choose to use
the network. Thus, whenever a credit-card network sells
one transaction’s worth of card-acceptance services to a
merchant it also must sell one transaction’s worth of card-
payment services to a cardholder. It cannot sell transac-
tion services to either cardholders or merchants individu-
ally. See Klein 583 (“Because cardholders and merchants
jointly consume a single product, payment card transac-
tions, their consumption of payment card transactions
must be directly proportional”). To optimize sales, the
network must find the balance of pricing that encourages
the greatest number of matches between cardholders and
merchants.
Because they cannot make a sale unless both sides of
the platform simultaneously agree to use their services,
two-sided transaction platforms exhibit more pronounced
indirect network effects and interconnected pricing and
demand. Transaction platforms are thus better under-
stood as “suppl[ying] only one product”—transactions.
Klein 580. In the credit-card market, these transactions
“are jointly consumed by a cardholder, who uses the pay-
ment card to make a transaction, and a merchant, who
accepts the payment card as a method of payment.” Ibid.
Tellingly, credit cards determine their market share by
measuring the volume of transactions they have sold.8
——————
8 Contrary to the dissent’s assertion, post, at 11–12, merchant ser-
vices and cardholder services are not complements. See Filistrucchi
297 (“[A] two-sided market [is] different from markets for complemen-
14 OHIO v. AMERICAN EXPRESS CO.
Opinion of the Court
Evaluating both sides of a two-sided transaction plat-
form is also necessary to accurately assess competition.
Only other two-sided platforms can compete with a two-
sided platform for transactions. See Filistrucchi 301. A
credit-card company that processed transactions for mer-
chants, but that had no cardholders willing to use its card,
could not compete with Amex. See ibid. Only a company
that had both cardholders and merchants willing to use its
network could sell transactions and compete in the credit-
card market. Similarly, if a merchant accepts the four
major credit cards, but a cardholder only uses Visa or
Amex, only those two cards can compete for the particular
transaction. Thus, competition cannot be accurately
assessed by looking at only one side of the platform in
isolation.9
For all these reasons, “[i]n two-sided transaction mar-
kets, only one market should be defined.” Id., at 302; see
also Evans & Noel 671 (“[F]ocusing on one dimension of
. . . competition tends to distort the competition that actu-
ally exists among [two-sided platforms]”). Any other
analysis would lead to “ ‘ “mistaken inferences” ’ ” of the
kind that could “ ‘ “chill the very conduct the antitrust laws
are designed to protect.” ’ ” Brooke Group Ltd. v. Brown &
Williamson Tobacco Corp., 509 U.S. 209, 226 (1993); see
also Matsushita Elec. Industrial Co. v. Zenith Radio Corp.,
——————
tary products, in which both products are bought by the same buyers,
who, in their buying decisions, can therefore be expected to take into
account both prices”). As already explained, credit-card companies are
best understood as supplying only one product—transactions—which is
jointly consumed by a cardholder and a merchant. See Klein 580.
Merchant services and cardholder services are both inputs to this single
product. See ibid.
9 Nontransaction platforms, by contrast, often do compete with com-
panies that do not operate on both sides of their platform. A newspaper
that sells advertising, for example, might have to compete with a
television network, even though the two do not meaningfully compete
for viewers. See Filistrucchi 301.
Cite as: 585 U. S. ____ (2018) 15
Opinion of the Court
475 U.S. 574, 594 (1986) (“ ‘[W]e must be concerned lest a
rule or precedent that authorizes a search for a particular
type of undesirable pricing behavior end up by discourag-
ing legitimate price competition’ ”); Leegin, 551 U.S., at
895 (noting that courts should avoid “increas[ing] the total
cost of the antitrust system by prohibiting procompetitive
conduct the antitrust laws should encourage”). Accordingly,
we will analyze the two-sided market for credit-card
transactions as a whole to determine whether the plain-
tiffs have shown that Amex’s antisteering provisions have
anticompetitive effects.
B
The plaintiffs have not carried their burden to prove
anticompetitive effects in the relevant market. The plain-
tiffs stake their entire case on proving that Amex’s agree-
ments increase merchant fees. We find this argument
unpersuasive.
As an initial matter, the plaintiffs’ argument about
merchant fees wrongly focuses on only one side of the two-
sided credit-card market. As explained, the credit-card
market must be defined to include both merchants and
cardholders. Focusing on merchant fees alone misses the
mark because the product that credit-card companies sell
is transactions, not services to merchants, and the compet-
itive effects of a restraint on transactions cannot be judged
by looking at merchants alone. Evidence of a price in-
crease on one side of a two-sided transaction platform
cannot by itself demonstrate an anticompetitive exercise of
market power. To demonstrate anticompetitive effects on
the two-sided credit-card market as a whole, the plaintiffs
must prove that Amex’s antisteering provisions increased
the cost of credit-card transactions above a competitive
level, reduced the number of credit-card transactions, or
otherwise stifled competition in the credit-card market.
See 1 Kalinowski §12.02[2]; Craftsman Limousine, Inc.,
16 OHIO v. AMERICAN EXPRESS CO.
Opinion of the Court
491 F.3d, at 390; Virginia Atlantic Airways Ltd., 257
F.3d, at 264. They failed to do so.
1
The plaintiffs did not offer any evidence that the price of
credit-card transactions was higher than the price one
would expect to find in a competitive market. As the
District Court found, the plaintiffs failed to offer any
reliable measure of Amex’s transaction price or profit
margins. 88 F. Supp. 3d, at 198, 215. And the evidence
about whether Amex charges more than its competitors
was ultimately inconclusive. Id., at 199, 202, 215.
Amex’s increased merchant fees reflect increases in the
value of its services and the cost of its transactions, not an
ability to charge above a competitive price. Amex began
raising its merchant fees in 2005 after Visa and Master-
Card raised their fees in the early 2000s. Id., at 195, 199–
200. As explained, Amex has historically charged higher
merchant fees than these competitors because it delivers
wealthier cardholders who spend more money. Id., at
200–201. Amex’s higher merchant fees are based on a
careful study of how much additional value its cardholders
offer merchants. See id., at 192–193. On the other side of
the market, Amex uses its higher merchant fees to offer its
cardholders a more robust rewards program, which is
necessary to maintain cardholder loyalty and encourage
the level of spending that makes Amex valuable to mer-
chants. Id., at 160, 191–195. That Amex allocates prices
between merchants and cardholders differently from Visa
and MasterCard is simply not evidence that it wields
market power to achieve anticompetitive ends. See Evans
& Noel 670–671; Klein 574–575, 594–595, 598, 626.
In addition, the evidence that does exist cuts against the
plaintiffs’ view that Amex’s antisteering provisions are the
cause of any increases in merchant fees. Visa and Master-
Card’s merchant fees have continued to increase, even
Cite as: 585 U. S. ____ (2018) 17
Opinion of the Court
at merchant locations where Amex is not accepted and,
thus, Amex’s antisteering provisions do not apply. See 88
F. Supp. 3d, at 222. This suggests that the cause of in-
creased merchant fees is not Amex’s antisteering provi-
sions, but rather increased competition for cardholders
and a corresponding marketwide adjustment in the rela-
tive price charged to merchants. See Klein 575, 609.
2
The plaintiffs did offer evidence that Amex increased
the percentage of the purchase price that it charges mer-
chants by an average of 0.09% between 2005 and 2010 and
that this increase was not entirely spent on cardholder
rewards. See 88 F. Supp. 3d, at 195–197, 215. The plain-
tiffs believe that this evidence shows that the price of
Amex’s transactions increased.
Even assuming the plaintiffs are correct, this evidence
does not prove that Amex’s antisteering provisions gave it
the power to charge anticompetitive prices. “Market
power is the ability to raise price profitably by restricting
output.” Areeda & Hovenkamp §5.01 (emphasis added);
accord, Kodak, 504 U.S., at 464; Business Electronics, 485
U.S., at 723. This Court will “not infer competitive injury
from price and output data absent some evidence that
tends to prove that output was restricted or prices were
above a competitive level.” Brooke Group Ltd., 509 U.S.,
at 237. There is no such evidence in this case. The output
of credit-card transactions grew dramatically from 2008 to
2013, increasing 30%. See 838 F.3d, at 206. “Where . . .
output is expanding at the same time prices are increas-
ing, rising prices are equally consistent with growing
product demand.” Brooke Group Ltd., supra, at 237. And,
as previously explained, the plaintiffs did not show that
Amex charged more than its competitors.
18 OHIO v. AMERICAN EXPRESS CO.
Opinion of the Court
3
The plaintiffs also failed to prove that Amex’s antisteer-
ing provisions have stifled competition among credit-card
companies. To the contrary, while these agreements have
been in place, the credit-card market experienced expand-
ing output and improved quality. Amex’s business model
spurred Visa and MasterCard to offer new premium card
categories with higher rewards. And it has increased the
availability of card services, including free banking and
card-payment services for low-income customers who
otherwise would not be served. Indeed, between 1970 and
2001, the percentage of households with credit cards more
than quadrupled, and the proportion of households in the
bottom-income quintile with credit cards grew from just
2% to over 38%. See D. Evans & R. Schmalensee, Paying
With Plastic: The Digital Revolution in Buying and Bor-
rowing 88–89 (2d ed. 2005) (Paying With Plastic).
Nor have Amex’s antisteering provisions ended competi-
tion between credit-card networks with respect to mer-
chant fees. Instead, fierce competition between networks
has constrained Amex’s ability to raise these fees and has,
at times, forced Amex to lower them. For instance, when
Amex raised its merchant prices between 2005 and 2010,
some merchants chose to leave its network. 88 F. Supp.
3d, at 197. And when its remaining merchants com-
plained, Amex stopped raising its merchant prices. Id., at
198. In another instance in the late 1980s and early
1990s, competition forced Amex to offer lower merchant
fees to “everyday spend” merchants—supermarkets, gas
stations, pharmacies, and the like—to persuade them to
accept Amex. See id., at 160–161, 202.
In addition, Amex’s competitors have exploited its
higher merchant fees to their advantage. By charging
lower merchant fees, Visa, MasterCard, and Discover have
achieved broader merchant acceptance—approximately 3
million more locations than Amex. Id., at 204. This
Cite as: 585 U. S. ____ (2018) 19
Opinion of the Court
broader merchant acceptance is a major advantage for
these networks and a significant challenge for Amex, since
consumers prefer cards that will be accepted everywhere.
Ibid. And to compete even further with Amex, Visa and
MasterCard charge different merchant fees for different
types of cards to maintain their comparatively lower mer-
chant fees and broader acceptance. Over the long run,
this competition has created a trend of declining merchant
fees in the credit-card market. In fact, since the first
credit card was introduced in the 1950s, merchant fees—
including Amex’s merchant fees—have decreased by more
than half. See id., at 202–203; Paying With Plastic 54,
126, 152.
Lastly, there is nothing inherently anticompetitive
about Amex’s antisteering provisions. These agreements
actually stem negative externalities in the credit-card
market and promote interbrand competition. When mer-
chants steer cardholders away from Amex at the point of
sale, it undermines the cardholder’s expectation of “wel-
come acceptance”—the promise of a frictionless transac-
tion. 88 F. Supp. 3d, at 156. A lack of welcome acceptance
at one merchant makes a cardholder less likely to use
Amex at all other merchants. This externality endangers
the viability of the entire Amex network. And it under-
mines the investments that Amex has made to encourage
increased cardholder spending, which discourages invest-
ments in rewards and ultimately harms both cardholders
and merchants. Cf. Leegin, 551 U.S., at 890–891 (recog-
nizing that vertical restraints can prevent retailers from
free riding and thus increase the availability of “tangible
or intangible services or promotional efforts” that enhance
competition and consumer welfare). Perhaps most im-
portantly, antisteering provisions do not prevent Visa,
MasterCard, or Discover from competing against Amex by
offering lower merchant fees or promoting their broader
20 OHIO v. AMERICAN EXPRESS CO.
Opinion of the Court
merchant acceptance.10
In sum, the plaintiffs have not satisfied the first step of
the rule of reason. They have not carried their burden of
proving that Amex’s antisteering provisions have anti-
competitive effects. Amex’s business model has spurred
robust interbrand competition and has increased the
quality and quantity of credit-card transactions. And it is
“[t]he promotion of interbrand competition,” after all,
that “is . . . ‘the primary purpose of the antitrust laws.’” Id.,
at 890.
* * *
Because Amex’s antisteering provisions do not unrea-
sonably restrain trade, we affirm the judgment of the
Court of Appeals.
It is so ordered.
——————
10 The plaintiffs argue that United States v. Topco Associates, Inc.,
405 U.S. 596, 610 (1972), forbids any restraint that would restrict
competition in part of the market—here, for example, merchant steer-
ing. See Brief for Petitioners and Respondents Nebraska, Tennessee,
and Texas 30, 42. Topco does not stand for such a broad proposition.
Topco concluded that a horizontal agreement between competitors was
unreasonable per se, even though the agreement did not extend to every
competitor in the market. See 405 U.S., at 599, 608. A horizontal
agreement between competitors is markedly different from a vertical
agreement that incidentally affects one particular method of competi-
tion. See Leegin, 551 U.S., at 888; Maricopa County Medical Soc., 457
U.S., at 348, n. 18.
Cite as: 585 U. S. ____ (2018) 1
BREYER, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 16–1454
_________________
OHIO, ET AL., PETITIONERS v. AMERICAN EXPRESS
COMPANY, ET AL. | American Express Company and American Express Travel Related Services Company (collectively, Amex) provide credit-card services to both merchants and card- holders. When a cardholder buys something from a mer- chant who accepts Amex credit cards, Amex processes the transaction through its network, promptly pays the mer- chant, and subtracts a fee. If a merchant wants to accept Amex credit cards—and attract Amex cardholders to its business—Amex requires the merchant to agree to an antisteering contractual provision. The antisteering pro- vision prohibits merchants from discouraging customers from using their Amex card after they have already en- tered the store and are about to buy something, thereby avoiding Amex’s fee. In this case, we must decide whether Amex’s antisteering provisions violate federal antitrust law. We conclude they do not. I A Credit cards have become a primary way that consum- ers in the United States purchase goods and services. 2 OHIO v. AMERICAN EXPRESS CO. Opinion of the Court When a cardholder uses a credit card to buy something from a merchant, the transaction is facilitated by a credit- card network. The network provides separate but inter- related services to both cardholders and merchants. For cardholders, the network extends them credit, which allows them to make purchases without cash and to defer payment until later. Cardholders also can receive rewards based on the amount of money they spend, such as airline miles, points for travel, or cash back. For merchants, the network allows them to avoid the cost of processing trans- actions and offers them quick, guaranteed payment. This saves merchants the trouble and risk of extending credit to customers, and it increases the number and value of sales that they can make. By providing these services to cardholders and mer- chants, credit-card companies bring these parties together, and therefore operate what economists call a “two-sided platform.” As the name implies, a two-sided platform offers different products or services to two different groups who both depend on the platform to intermediate between them. See Evans & Schmalensee, Markets With Two- Sided Platforms, 1 Issues in Competition L. & Pol’y 667 (2008) (Evans & Schmalensee); Evans & Noel, Defining Antitrust Markets When Firms Operate Two-Sided Plat- forms, ; Filistrucchi, Geradin, Van Damme, & Affeldt, Market Definition in Two-Sided Markets: Theory and Practice, J. Competition L. & Econ. 293, 296 (2014) (Filistrucchi). For credit cards, that interaction is a transac Thus, credit-card networks are a special type of two-sided plat- form known as a “transaction” platform. See 304, 307; Evans & Noel 676–678. The key feature of transaction platforms is that they cannot make a sale to one side of the platform without simultaneously making a sale to the other. See Klein, Lerner, Murphy, & Plache, Competition in Two-Sided Markets: The Antitrust Eco- Cite as: 585 U. S. (2018) 3 Opinion of the Court nomics of Payment Card Interchange Fees, 73 Antitrust L. J. 1, 580, 583 (2006) (Klein). For example, no credit- card transaction can occur unless both the merchant and the cardholder simultaneously agree to use the same credit-card network. See Filistrucchi 301. Two-sided platforms differ from traditional markets in important ways. Most relevant here, two-sided platforms often exhibit what economists call “indirect network ef- fects.” Evans & Schmalensee 667. Indirect network ef- fects exist where the value of the two-sided platform to one group of participants depends on how many members of a different group participate. D. Evans & R. Schmalensee, Matchmakers: The New Economics of Multisided Plat- forms 25 (2016). In other words, the value of the services that a two-sided platform provides increases as the num- ber of participants on both sides of the platform increases. A credit card, for example, is more valuable to cardholders when more merchants accept it, and is more valuable to merchants when more cardholders use it. See Evans & Noel 686–687; Klein 580, 584. To ensure sufficient partic- ipation, two-sided platforms must be sensitive to the prices that they charge each side. See Evans & Schma- lensee 675; Evans & Noel 680; Muris, Payment Card Regulation and the (Mis)Application of the Economics of Two-Sided Markets, 532– 533 (Muris); Rochet & Tirole, Platform Competition in Two-Sided Markets, 1 J. Eur. Econ. Assn. 990, 13 (2003). Raising the price on side A risks losing participa- tion on that side, which decreases the value of the plat- form to side B. If participants on side B leave due to this loss in value, then the platform has even less value to side A—risking a feedback loop of declining demand. See Evans & Schmalensee 675; Evans & Noel 680–681. Two- sided platforms therefore must take these indirect net- work effects into account before making a change in price on either side. See Evans & Schmalensee 675; Evans & 4 OHIO v. AMERICAN EXPRESS CO. Opinion of the Court Noel 680–681.1 Sometimes indirect network effects require two-sided platforms to charge one side much more than the other. See Evans & Schmalensee 667, 675, 681, 690–691; Evans & Noel 691; Klein 585; Filistrucchi 300. For two- sided platforms, “ ‘the [relative] price structure matters, and platforms must design it so as to bring both sides on board.’ ” Evans & Schmalensee 669 (quoting Rochet & Tirole, Two-Sided Markets: A Progress Report, 37 RAND J. Econ. 645, 646 (2006)). The optimal price might require charging the side with more elastic demand a below-cost (or even negative) price. See Muris 519, 550; Klein 9; Evans & Schmalensee 675; Evans & Noel 681. With credit cards, for example, networks often charge cardholders a lower fee than merchants because cardholders are more price sensitive.2 See Muris 522; Klein 3–4, 585, 595. In fact, the network might well lose money on the card- holder side by offering rewards such as cash back, airline miles, or gift cards. See Klein 587; Evans & Schmalensee 672. The network can do this because increasing the number of cardholders increases the value of accepting the card to merchants and, thus, increases the number of —————— 1 Ina competitive market, indirect network effects also encourage companies to take increased profits from a price increase on side A and spend them on side B to ensure more robust participation on that side and to stem the impact of indirect network effects. See Evans & Schmalensee 688; Evans & Noel 670–671, 695. Indirect network effects thus limit the platform’s ability to raise overall prices and impose a check on its market power. See Evans & Schmalensee 688; Evans & Noel 695. 2 “Cardholders are more price-sensitive because many consumers have multiple payment methods, including alternative payment cards. Most merchants, by contrast, cannot accept just one major card because they are likely to lose profitable incremental sales if they do not take [all] the major payment cards. Because most consumers do not carry all of the major payment cards, refusing to accept a major card may cost the merchant substantial sales.” Muris 522. Cite as: 585 U. S. (2018) 5 Opinion of the Court merchants who accept it. Muris 522; Evans & Schma- lensee 692. Networks can then charge those merchants a fee for every transaction (typically a percentage of the purchase price). Striking the optimal balance of the prices charged on each side of the platform is essential for two- sided platforms to maximize the value of their services and to compete with their rivals. B Amex, Visa, MasterCard, and Discover are the four dominant participants in the credit-card market. Visa, which is by far the largest, has 45% of the market as measured by transaction volume.3 Amex and MasterCard trail with 26.4% and 23.3%, respectively, while Discover has just 5.3% of the market. Visa and MasterCard have significant structural ad- vantages over Amex. Visa and MasterCard began as bank cooperatives and thus almost every bank that offers credit cards is in the Visa or MasterCard network. This makes it very likely that the average consumer carries, and the average merchant accepts, Visa or MasterCard. As a result, the vast majority of Amex cardholders have a Visa or MasterCard, but only a small number of Visa and Master- Card cardholders have an Amex. Indeed, Visa and MasterCard account for more than 432 million cards in circulation in the United States, while Amex has only 53 million. And while 3.4 million merchants at 6.4 million locations accept Amex, nearly three million more locations accept Visa, MasterCard, and Discover.4 —————— 3 Allfigures are accurate as of 2013. 4 Discover entered the credit-card market several years after Amex, Visa, and MasterCard. It nonetheless managed to gain a foothold because Sears marketed Discover to its already significant base of private-label cardholders. Discover’s business model shares certain features with Amex, Visa, and MasterCard. Like Amex, Discover interacts directly with its cardholders. But like Visa and MasterCard, 6 OHIO v. AMERICAN EXPRESS CO. Opinion of the Court Amex competes with Visa and MasterCard by using a different business model. While Visa and MasterCard earn half of their revenue by collecting interest from their cardholders, Amex does not. Amex instead earns most of its revenue from merchant fees. Amex’s business model thus focuses on cardholder spending rather than card- holder lending. To encourage cardholder spending, Amex provides better rewards than other networks. Due to its superior rewards, Amex tends to attract cardholders who are wealthier and spend more money. Merchants place a higher value on these cardholders, and Amex uses this advantage to recruit merchants. Amex’s business model has significantly influenced the credit-card market. To compete for the valuable cardhold- ers that Amex attracts, both Visa and MasterCard have introduced premium cards that, like Amex, charge mer- chants higher fees and offer cardholders better rewards. To maintain their lower merchant fees, Visa and Master- Card have created a sliding scale for their various cards— charging merchants less for low-reward cards and more for high-reward cards. This differs from Amex’s strategy, which is to charge merchants the same fee no matter the rewards that its card offers. Another way that Amex has influenced the credit-card market is by making banking and card-payment services available to low-income indi- viduals, who otherwise could not qualify for a credit card and could not afford the fees that traditional banks charge. See 2 Record 3835–3837, 4527–4529. In sum, Amex’s business model has stimulated competitive inno- vations in the credit-card market, increasing the volume of transactions and improving the quality of the services. Despite these improvements, Amex’s business model sometimes causes friction with merchants. To maintain —————— Discover uses banks that cooperate with its network to interact with merchants. Cite as: 585 U. S. (2018) 7 Opinion of the Court the loyalty of its cardholders, Amex must continually invest in its rewards program. But, to fund those invest- ments, Amex must charge merchants higher fees than its rivals. Even though Amex’s investments benefit mer- chants by encouraging cardholders to spend more money, merchants would prefer not to pay the higher fees. One way that merchants try to avoid them, while still enticing Amex’s cardholders to shop at their stores, is by dissuad- ing cardholders from using Amex at the point of sale. This practice is known as “steering.” Amex has prohibited steering since the 1950s by placing antisteering provisions in its contracts with merchants. These antisteering provisions prohibit merchants from implying a preference for non-Amex cards; dissuading customers from using Amex cards; persuading customers to use other cards; imposing any special restrictions, conditions, disadvantages, or fees on Amex cards; or pro- moting other cards more than Amex. The antisteering provisions do not, however, prevent merchants from steer- ing customers toward debit cards, checks, or cash. C In October 20, the United States and several States (collectively, plaintiffs) sued Amex, claiming that its an- tisteering provisions violate of the Sherman Act, 26 Stat. 209, as amended, 15 U.S. C.5 After a 7-week trial, the District Court agreed that Amex’s antisteering provisions violate United It found that the credit-card market should be treated as two separate markets—one for merchants and one for card- holders. See at 171–175. Evaluating the effects on the —————— 5 Plaintiffs also sued Visa and MasterCard, claiming that their anti- steering provisions violated But Visa and MasterCard voluntarily revoked their antisteering provisions and are no longer parties to this case. 8 OHIO v. AMERICAN EXPRESS CO. Opinion of the Court merchant side of the market, the District Court found that Amex’s antisteering provisions are anticompetitive because they result in higher merchant fees. See at 195–224. The Court of Appeals for the Second Circuit reversed. United (2016). It concluded that the credit-card market is one market, not two. 6–200. Evaluating the credit- card market as a whole, the Second Circuit concluded that Amex’s antisteering provisions were not anticompetitive and did not violate See at 200–206. We granted certiorari, 583 U. S. (2017), and now affirm. II Section 1 of the Sherman Act prohibits “[e]very contract, combination in the form of trust or otherwise, or conspir- acy, in restraint of trade or commerce among the several States.” 15 U.S. C. This Court has long recognized that, “[i]n view of the common law and the law in this country” when the Sherman Act was passed, the phrase “restraint of trade” is best read to mean “undue restraint.” Standard Co. of N. 59– 60 (1911). This Court’s precedents have thus understood “to outlaw only unreasonable restraints.” State Co. v. Khan, Restraints can be unreasonable in one of two ways. A small group of restraints are unreasonable per se because they “ ‘ “always or almost always tend to restrict competi- tion and decrease output.” ’ ” Business Corp. v. Sharp Corp., Typi- cally only “horizontal” restraints—restraints “imposed by agreement between competitors”—qualify as unreasonable per se. Restraints that are not unreasonable per se are judged under the “rule of reason.” at The rule of reason requires courts to conduct a fact-specific Cite as: 585 U. S. (2018) 9 Opinion of the Court assessment of “market power and market structure to assess the [restraint]’s actual effect” on competi Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 768 (1984). The goal is to “distinguis[h] between restraints with anticompetitive effect that are harmful to the consumer and restraints stimulating competition that are in the consumer’s best interest.” Creative Leather Products, In this case, both sides correctly acknowledge that Amex’s antisteering provisions are vertical restraints— i.e., restraints “imposed by agreement between firms at different levels of distribu” Business The parties also correctly acknowledge that, like nearly every other vertical restraint, the anti- steering provisions should be assessed under the rule of reason. See ; State ; Business ; Continental T. V., Inc. v. GTE Sylvania Inc., To determine whether a restraint violates the rule of reason, the parties agree that a three-step, burden- shifting framework applies. Under this framework, the plaintiff has the initial burden to prove that the chal- lenged restraint has a substantial anticompetitive effect that harms consumers in the relevant market. See 1 J. Kalinowski, Antitrust Laws and Trade Regulation 2.02[1] (2d ed. 2017) (Kalinowski); P. Areeda & H. Hovenkamp, Fundamentals of Antitrust Law 5.02[B] (4th ed. 2017) (Areeda & Hovenkamp); Capital Imaging P. If the plaintiff carries its burden, then the burden shifts to the defendant to show a procompetitive rationale for the restraint. See 1 Kalinow- ski 2.02[1]; Areeda & Hovenkamp 5.02[B]; Capital Imaging at If the defendant makes this showing, then the burden shifts back to the plaintiff OHIO v. AMERICAN EXPRESS CO. Opinion of the Court to demonstrate that the procompetitive efficiencies could be reasonably achieved through less anticompetitive means. See 1 Kalinowski 2.02[1]; Capital Imaging at Here, the parties ask us to decide whether the plaintiffs have carried their initial burden of proving that Amex’s antisteering provisions have an anticompetitive effect. The plaintiffs can make this showing directly or indirectly. Direct evidence of anticompetitive effects would be “ ‘proof of actual detrimental effects [on competition],’ ” FTC v. Indiana Federation of such as reduced output, increased prices, or decreased quality in the relevant market, see 1 Kalinowski 2.02[2]; Craftsman Limousine, Inc. v. Ford Motor Co., 491 F.3d 381, 390 ; Virginia Atlantic Airways v. British Airways PLC, 2 F.3d 256, Indirect evidence would be proof of market power plus some evidence that the challenged restraint harms compe- ti See 1 Kalinowski 2.02[2]; Tops Markets, Inc. v. Quality Markets, Inc., ; Span- ish Broadcasting System of 376 F.3d 65, 73 Here, the plaintiffs rely exclusively on direct evidence to prove that Amex’s antisteering provisions have caused anticompetitive effects in the credit-card market.6 To assess this evidence, we must first define the relevant market. Once defined, it becomes clear that the plaintiffs’ evidence is insufficient to carry their burden. A Because “[l]egal presumptions that rest on formalistic distinctions rather than actual market realities are gener- ally disfavored in antitrust law,” Eastman Co. v. —————— 6 Although the plaintiffs relied on indirect evidence below, they have abandoned that argument in this Court. See Brief for United States 23, n. 4 (citing Pet. for Cert. i, 18–25). Cite as: 585 U. S. (2018) 11 Opinion of the Court Image Technical Services, Inc., 466–467 (1992), courts usually cannot properly apply the rule of reason without an accurate definition of the relevant market.7 “Without a definition of [the] market there is no way to measure [the defendant’s] ability to lessen or de- stroy competi” Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., (1965); accord, 2 Kalinowski Thus, the rele- vant market is defined as “the area of effective competi- ” Typically this is the “arena within which significant substitution in consumption or production occurs.” Areeda & Hovenkamp accord, 2 Kalinow- ski United States v. Grinnell Corp., 384 U. S. —————— 7 The plaintiffs argue that we need not define the relevant market in this case because they have offered actual evidence of adverse effects on competition—namely, increased merchant fees. See Brief for United States 40–41 and (1980) (per curiam)). We disagree. The cases that the plaintiffs cite for this proposition evaluated whether horizontal restraints had an ad- verse effect on competi See Indiana Federation of at 450–451, 459 (agreement between competing dentists not to share X rays with insurance companies); at 644–645, 650 (agreement among competing wholesalers not to compete on extending credit to retailers). Given that horizontal restraints involve agree- ments between competitors not to compete in some way, this Court concluded that it did not need to precisely define the relevant market to conclude that these agreements were anticompetitive. See Indiana Federation of at –461; at 648–649. But vertical restraints are different. See 4 U.S. 332, ; Creative Leather Products, Vertical re- straints often pose no risk to competition unless the entity imposing them has market power, which cannot be evaluated unless the Court first defines the relevant market. See (noting that a vertical restraint “may not be a serious concern unless the relevant entity has market power”); Easterbrook, Vertical Arrangements and the Rule of Reason, 53 Antitrust L. J. 135, 160 (1984) (“[T]he possibly anticompeti- tive manifestations of vertical arrangements can occur only if there is market power”). 12 OHIO v. AMERICAN EXPRESS CO. Opinion of the Court 563, 1 (1966). But courts should “combin[e]” different products or services into “a single market” when “that combination reflects commercial realities.” at 2; see also Brown Shoe 336– 337 (1962) (pointing out that “the definition of the relevant market” must “ ‘correspond to the commercial realities’ of the industry”). As explained, credit-card networks are two-sided plat- forms. Due to indirect network effects, two-sided plat- forms cannot raise prices on one side without risking a feedback loop of declining demand. See Evans & Schma- lensee 674–675; Evans & Noel 680–681. And the fact that two-sided platforms charge one side a price that is below or above cost reflects differences in the two sides’ demand elasticity, not market power or anticompetitive pricing. See Klein 4, 595, 598, 626. Price increases on one side of the platform likewise do not suggest anticompetitive effects without some evidence that they have increased the overall cost of the platform’s services. See at 5, 626. Thus, courts must include both sides of the plat- form—merchants and cardholders—when defining the credit-card market. To be sure, it is not always necessary to consider both sides of a two-sided platform. A market should be treated as one sided when the impacts of indirect network effects and relative pricing in that market are minor. See Fil- istrucchi 321–322. Newspapers that sell advertisements, for example, arguably operate a two-sided platform be- cause the value of an advertisement increases as more people read the newspaper. at 2, 315; Klein 9. But in the newspaper-advertisement market, the indirect networks effects operate in only one direction; newspaper readers are largely indifferent to the amount of advertis- ing that a newspaper contains. See Filistrucchi 321, 323, and n. 99; Klein 583. Because of these weak indirect network effects, the market for newspaper advertising Cite as: 585 U. S. (2018) 13 Opinion of the Court behaves much like a one-sided market and should be analyzed as such. See Filistrucchi 321; Times-Picayune Publishing 6 But two-sided transaction platforms, like the credit-card market, are different. These platforms facilitate a single, simultaneous transaction between participants. For credit cards, the network can sell its services only if a mer- chant and cardholder both simultaneously choose to use the network. Thus, whenever a credit-card network sells one transaction’s worth of card-acceptance services to a merchant it also must sell one transaction’s worth of card- payment services to a cardholder. It cannot sell transac- tion services to either cardholders or merchants individu- ally. See Klein 583 (“Because cardholders and merchants jointly consume a single product, payment card transac- tions, their consumption of payment card transactions must be directly proportional”). To optimize sales, the network must find the balance of pricing that encourages the greatest number of matches between cardholders and merchants. Because they cannot make a sale unless both sides of the platform simultaneously agree to use their services, two-sided transaction platforms exhibit more pronounced indirect network effects and interconnected pricing and demand. Transaction platforms are thus better under- stood as “suppl[ying] only one product”—transactions. Klein 580. In the credit-card market, these transactions “are jointly consumed by a cardholder, who uses the pay- ment card to make a transaction, and a merchant, who accepts the payment card as a method of payment.” Tellingly, credit cards determine their market share by measuring the volume of transactions they have sold.8 —————— 8 Contrary to the dissent’s assertion, post, at 11–12, merchant ser- vices and cardholder services are not complements. See Filistrucchi 2 (“[A] two-sided market [is] different from markets for complemen- 14 OHIO v. AMERICAN EXPRESS CO. Opinion of the Court Evaluating both sides of a two-sided transaction plat- form is also necessary to accurately assess competi Only other two-sided platforms can compete with a two- sided platform for transactions. See Filistrucchi 301. A credit-card company that processed transactions for mer- chants, but that had no cardholders willing to use its card, could not compete with Amex. See Only a company that had both cardholders and merchants willing to use its network could sell transactions and compete in the credit- card market. Similarly, if a merchant accepts the four major credit cards, but a cardholder only uses Visa or Amex, only those two cards can compete for the particular transac Thus, competition cannot be accurately assessed by looking at only one side of the platform in isola9 For all these reasons, “[i]n two-sided transaction mar- kets, only one market should be defined.” ; see also Evans & Noel 671 (“[F]ocusing on one dimension of competition tends to distort the competition that actu- ally exists among [two-sided platforms]”). Any other analysis would lead to “ ‘ “mistaken inferences” ’ ” of the kind that could “ ‘ “chill the very conduct the antitrust laws are designed to protect.” ’ ” Brooke Group ; see also Matsushita Elec. Industrial Co. v. Zenith Radio Corp., —————— tary products, in which both products are bought by the same buyers, who, in their buying decisions, can therefore be expected to take into account both prices”). As already explained, credit-card companies are best understood as supplying only one product—transactions—which is jointly consumed by a cardholder and a merchant. See Klein 580. Merchant services and cardholder services are both inputs to this single product. See 9 Nontransaction platforms, by contrast, often do compete with com- panies that do not operate on both sides of their platform. A newspaper that sells advertising, for example, might have to compete with a television network, even though the two do not meaningfully compete for viewers. See Filistrucchi 301. Cite as: 585 U. S. (2018) 15 Opinion of the Court 475 U.S. 4, (“ ‘[W]e must be concerned lest a rule or precedent that authorizes a search for a particular type of undesirable pricing behavior end up by discourag- ing legitimate price competition’ ”); 551 U.S., at 895 (noting that courts should avoid “increas[ing] the total cost of the antitrust system by prohibiting procompetitive conduct the antitrust laws should encourage”). Accordingly, we will analyze the two-sided market for credit-card transactions as a whole to determine whether the plain- tiffs have shown that Amex’s antisteering provisions have anticompetitive effects. B The plaintiffs have not carried their burden to prove anticompetitive effects in the relevant market. The plain- tiffs stake their entire case on proving that Amex’s agree- ments increase merchant fees. We find this argument unpersuasive. As an initial matter, the plaintiffs’ argument about merchant fees wrongly focuses on only one side of the two- sided credit-card market. As explained, the credit-card market must be defined to include both merchants and cardholders. Focusing on merchant fees alone misses the mark because the product that credit-card companies sell is transactions, not services to merchants, and the compet- itive effects of a restraint on transactions cannot be judged by looking at merchants alone. Evidence of a price in- crease on one side of a two-sided transaction platform cannot by itself demonstrate an anticompetitive exercise of market power. To demonstrate anticompetitive effects on the two-sided credit-card market as a whole, the plaintiffs must prove that Amex’s antisteering provisions increased the cost of credit-card transactions above a competitive level, reduced the number of credit-card transactions, or otherwise stifled competition in the credit-card market. See 1 Kalinowski 2.02[2]; Craftsman Limousine, Inc., 16 OHIO v. AMERICAN EXPRESS CO. Opinion of the Court ; Virginia Atlantic Airways 2 F.3d, at They failed to do so. 1 The plaintiffs did not offer any evidence that the price of credit-card transactions was higher than the price one would expect to find in a competitive market. As the District Court found, the plaintiffs failed to offer any reliable measure of Amex’s transaction price or profit 88 F. Supp. 3d, 8, 215. And the evidence about whether Amex charges more than its competitors was ultimately inconclusive. 9, 202, 215. Amex’s increased merchant fees reflect increases in the value of its services and the cost of its transactions, not an ability to charge above a competitive price. Amex began raising its merchant fees in 2005 after Visa and Master- Card raised their fees in the early 2000s. 5, 199– 200. As explained, Amex has historically charged higher merchant fees than these competitors because it delivers wealthier cardholders who spend more money. at 200–201. Amex’s higher merchant fees are based on a careful study of how much additional value its cardholders offer merchants. See 2–193. On the other side of the market, Amex uses its higher merchant fees to offer its cardholders a more robust rewards program, which is necessary to maintain cardholder loyalty and encourage the level of spending that makes Amex valuable to mer- chants. 191–195. That Amex allocates prices between merchants and cardholders differently from Visa and MasterCard is simply not evidence that it wields market power to achieve anticompetitive ends. See Evans & Noel 670–671; Klein 4–5, –595, 598, 626. In addition, the evidence that does exist cuts against the plaintiffs’ view that Amex’s antisteering provisions are the cause of any increases in merchant fees. Visa and Master- Card’s merchant fees have continued to increase, even Cite as: 585 U. S. (2018) 17 Opinion of the Court at merchant locations where Amex is not accepted and, thus, Amex’s antisteering provisions do not apply. See 88 F. Supp. 3d, at 222. This suggests that the cause of in- creased merchant fees is not Amex’s antisteering provi- sions, but rather increased competition for cardholders and a corresponding marketwide adjustment in the rela- tive price charged to merchants. See Klein 5, 609. 2 The plaintiffs did offer evidence that Amex increased the percentage of the purchase price that it charges mer- chants by an average of 0.09% between 2005 and 20 and that this increase was not entirely spent on cardholder rewards. See 88 F. Supp. 3d, 5–1, 215. The plain- tiffs believe that this evidence shows that the price of Amex’s transactions increased. Even assuming the plaintiffs are correct, this evidence does not prove that Amex’s antisteering provisions gave it the power to charge anticompetitive prices. “Market power is the ability to raise price profitably by restricting output.” Areeda & Hovenkamp ; accord, ; Business 485 U.S., at This Court will “not infer competitive injury from price and output data absent some evidence that tends to prove that output was restricted or prices were above a competitive level.” Brooke Group 509 U.S., There is no such evidence in this case. The output of credit-card transactions grew dramatically from 2008 to 2013, increasing 30%. See “Where output is expanding at the same time prices are increas- ing, rising prices are equally consistent with growing product demand.” Brooke Group And, as previously explained, the plaintiffs did not show that Amex charged more than its competitors. 18 OHIO v. AMERICAN EXPRESS CO. Opinion of the Court 3 The plaintiffs also failed to prove that Amex’s antisteer- ing provisions have stifled competition among credit-card companies. To the contrary, while these agreements have been in place, the credit-card market experienced expand- ing output and improved quality. Amex’s business model spurred Visa and MasterCard to offer new premium card categories with higher rewards. And it has increased the availability of card services, including free banking and card-payment services for low-income customers who otherwise would not be served. Indeed, between 10 and the percentage of households with credit cards more than quadrupled, and the proportion of households in the bottom-income quintile with credit cards grew from just 2% to over 38%. See D. Evans & R. Schmalensee, Paying With Plastic: The Digital Revolution in Buying and Bor- rowing 88–89 (2d ed. 2005) (Paying With Plastic). Nor have Amex’s antisteering provisions ended competi- tion between credit-card networks with respect to mer- chant fees. Instead, fierce competition between networks has constrained Amex’s ability to raise these fees and has, at times, forced Amex to lower them. For instance, when Amex raised its merchant prices between 2005 and 20, some merchants chose to leave its network. 88 F. Supp. 3d, 7. And when its remaining merchants com- plained, Amex stopped raising its merchant prices. at 198. In another instance in the late 1980s and early 1990s, competition forced Amex to offer lower merchant fees to “everyday spend” merchants—supermarkets, gas stations, pharmacies, and the like—to persuade them to accept Amex. See –161, 202. In addition, Amex’s competitors have exploited its higher merchant fees to their advantage. By charging lower merchant fees, Visa, MasterCard, and Discover have achieved broader merchant acceptance—approximately 3 million more locations than Amex. This Cite as: 585 U. S. (2018) 19 Opinion of the Court broader merchant acceptance is a major advantage for these networks and a significant challenge for Amex, since consumers prefer cards that will be accepted everywhere. And to compete even further with Amex, Visa and MasterCard charge different merchant fees for different types of cards to maintain their comparatively lower mer- chant fees and broader acceptance. Over the long run, this competition has created a trend of declining merchant fees in the credit-card market. In fact, since the first credit card was introduced in the 1950s, merchant fees— including Amex’s merchant fees—have decreased by more than half. See at 202–203; Paying With Plastic 54, 126, 152. Lastly, there is nothing inherently anticompetitive about Amex’s antisteering provisions. These agreements actually stem negative externalities in the credit-card market and promote interbrand competi When mer- chants steer cardholders away from Amex at the point of sale, it undermines the cardholder’s expectation of “wel- come acceptance”—the promise of a frictionless transac- A lack of welcome acceptance at one merchant makes a cardholder less likely to use Amex at all other merchants. This externality endangers the viability of the entire Amex network. And it under- mines the investments that Amex has made to encourage increased cardholder spending, which discourages invest- ments in rewards and ultimately harms both cardholders and merchants. Cf. –891 (recog- nizing that vertical restraints can prevent retailers from free riding and thus increase the availability of “tangible or intangible services or promotional efforts” that enhance competition and consumer welfare). Perhaps most im- portantly, antisteering provisions do not prevent Visa, MasterCard, or Discover from competing against Amex by offering lower merchant fees or promoting their broader 20 OHIO v. AMERICAN EXPRESS CO. Opinion of the Court merchant acceptance. In sum, the plaintiffs have not satisfied the first step of the rule of reason. They have not carried their burden of proving that Amex’s antisteering provisions have anti- competitive effects. Amex’s business model has spurred robust interbrand competition and has increased the quality and quantity of credit-card transactions. And it is “[t]he promotion of interbrand competition,” after all, that “is ‘the primary purpose of the antitrust laws.’” at 890. * * * Because Amex’s antisteering provisions do not unrea- sonably restrain trade, we affirm the judgment of the Court of Appeals. It is so ordered. —————— The plaintiffs argue that United 6 (12), forbids any restraint that would restrict competition in part of the market—here, for example, merchant steer- ing. See Brief for Petitioners and Respondents Nebraska, Tennessee, and Texas 30, 42. Topco does not stand for such a broad proposi Topco concluded that a horizontal agreement between competitors was unreasonable per se, even though the agreement did not extend to every competitor in the market. See 608. A horizontal agreement between competitors is markedly different from a vertical agreement that incidentally affects one particular method of competi- See 551 U.S., at ; Maricopa County Medical Soc., 4 U.S., at Cite as: 585 U. S. (2018) 1 BREYER, J., dissenting SUPREME COURT OF THE UNITED STATES No. 16–1454 OHIO, ET AL., PETITIONERS v. AMERICAN EXPRESS COMPANY, ET AL. |
Justice Scalia | concurring | false | Black v. United States | 2010-06-24T00:00:00 | null | https://www.courtlistener.com/opinion/149285/black-v-united-states/ | https://www.courtlistener.com/api/rest/v3/clusters/149285/ | 2,010 | 2009-086 | 2 | 9 | 0 | I join the Court’s opinion with two exceptions. First, I
do not join in its reliance, ante, at 7, on the Notes of the
Advisory Committee in determining the meaning of Fed
eral Rule of Criminal Procedure 30(d). The Committee’s
view is not authoritative. See Krupski v. Costa Crociere
S. p. A., 560 U. S. ___, ___ (2010) (SCALIA, J., concurring in
part and concurring in judgment) (slip op., at 1). The
Court accurately quotes the text of the Rule, see ante, at 7,
the meaning of which is obvious. No more should be said.
Second, I agree with the Court, ante, at 5, 8, that the
District Court’s honest-services-fraud instructions to the
jury were erroneous, but for a quite different reason. In
my view, the error lay not in instructing inconsistently
with the theory of honest-services fraud set forth in Skill
ing v. United States, ante, p. ___, but in instructing the
jury on honest-services fraud at all. For the reasons set
forth in my opinion in that case, 18 U.S. C. §1346 is un
constitutionally vague. Skilling, ante, p. ___ (SCALIA, J.,
concurring in part and concurring in judgment).
Cite as: 561 U. S. ____ (2010) 1
Opinion of KENNEDY, J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 08–876
_________________
CONRAD M. BLACK, JOHN A. BOULTBEE, AND MARK
S. KIPNIS, PETITIONERS v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT
[June 24, 2010]
JUSTICE KENNEDY, concurring in part and concurring in
the judgment.
I join the Court’s opinion except for those parts stating
that 18 U.S. C. §1346 “criminalizes only schemes to de
fraud that involve bribes or kickbacks.” Ante, at 5. For
the reasons set forth in JUSTICE SCALIA’s separate opinion
in Skilling v. United States, ante, p. ___ (opinion concur
ring in part and concurring in judgment), §1346 is uncon
stitutionally vague. To convict a defendant based on an
honest-services-fraud theory, even one limited to bribes or
kickbacks, would violate his or her rights under the Due
Process Clause of the Fifth Amendment | I join the Court’s opinion with two exceptions. First, I do not join in its reliance, ante, at 7, on the Notes of the Advisory Committee in determining the meaning of Fed eral Rule of Criminal Procedure 30(d). The Committee’s view is not authoritative. See Krupski v. Costa Crociere S. p. A., 560 U. S. (2010) (SCALIA, J., concurring in part and concurring in judgment) (slip op., at 1). The Court accurately quotes the text of the Rule, see ante, at 7, the meaning of which is obvious. No more should be said. Second, I agree with the Court, ante, at 5, 8, that the District Court’s honest-services-fraud instructions to the jury were erroneous, but for a quite different reason. In my view, the error lay not in instructing inconsistently with the theory of honest-services fraud set forth in Skill ing v. United States, ante, p. but in instructing the jury on honest-services fraud at all. For the reasons set forth in my opinion in that case, 18 U.S. C. is un constitutionally vague. Skilling, ante, p. (SCALIA, J., concurring in part and concurring in judgment). Cite as: 561 U. S. (2010) 1 Opinion of KENNEDY, J. SUPREME COURT OF THE UNITED STATES No. 08–876 CONRAD M. BLACK, JOHN A. BOULTBEE, AND MARK S. KIPNIS, PETITIONERS v. UNITED STATES ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT [June 24, 2010] JUSTICE KENNEDY, concurring in part and concurring in the judgment. I join the Court’s opinion except for those parts stating that 18 U.S. C. “criminalizes only schemes to de fraud that involve bribes or kickbacks.” Ante, at 5. For the reasons set forth in JUSTICE SCALIA’s separate opinion in Skilling v. United States, ante, p. (opinion concur ring in part and concurring in judgment), is uncon stitutionally vague. To convict a defendant based on an honest-services-fraud theory, even one limited to bribes or kickbacks, would violate his or her rights under the Due Process Clause of the Fifth Amendment |
Justice Marshall | dissenting | false | United States v. Loud Hawk | 1986-03-03T00:00:00 | null | https://www.courtlistener.com/opinion/111554/united-states-v-loud-hawk/ | https://www.courtlistener.com/api/rest/v3/clusters/111554/ | 1,986 | 1985-023 | 1 | 5 | 4 | The Court holds today that the Speedy Trial Clause of the Sixth Amendment does not apply to a Government appeal from a district court's dismissal of an indictment, unless the defendant is incarcerated or otherwise under restraint during that appeal. The majority supports this result by equating the present case to United States v. MacDonald, 456 U.S. 1 (1982). That analysis, however, both ignores the considerable differences between this case and MacDonald and gives short shrift to the interests protected by the Speedy Trial Clause. I further disagree with the majority's application *318 of Barker v. Wingo, 407 U.S. 514 (1972), to the remaining appellate delays in this case.
I
The majority concludes that when an appeal arises out of the district court's dismissal of an indictment, the lack of an outstanding indictment absolves the Government of its responsibility to provide a speedy trial. However, we have never conditioned Sixth Amendment rights solely on the presence of an outstanding indictment. Those rights attach to anyone who is "accused,"[1] and we have until now recognized that one may stand publicly accused without being under indictment. The majority offers two reasons for concluding that respondents did not enjoy the right to a speedy trial during the Government's appeals. First, respondents were suffering only "[p]ublic suspicion," ante, at 311, and not a formal accusation. Second, they were not subject to "actual restraints" on their liberty. Both of these rationales are seriously flawed.
A
In United States v. Marion, 404 U.S. 307 (1971), we held that the Speedy Trial Clause does not apply until the Government, either through arrest or indictment, asserts probable cause to believe that a suspect has committed a crime. Before that time the individual, while possibly aware of the Government's suspicion, is not "the subject of public accusation," id., at 321, and his only protection against delay comes from the Due Process Clause and the applicable statute of limitations. The Court applied the same rationale in MacDonald, supra. In that case, military charges of murder against MacDonald, an Army officer, were dropped after an investigation. MacDonald was then given an honorable discharge, only to be indicted by a civilian grand jury nearly *319 four years later for the same murders. The Court held that this delay did not implicate the speedy trial right because "the Speedy Trial Clause has no application after the Government, acting in good faith, formally drops charges." Id., at 7. The Court reasoned that after the termination of the first formal prosecution, MacDonald was "in the same position as any other subject of a criminal investigation," id., at 8-9, and thus was no more an "accused" than was the defendant in Marion before his arrest.
The same cannot be said of respondents in the present case.[2] Unlike one who has not been arrested, or one who has had the charges against him dropped, respondents did not enjoy the protection of the statute of limitations while the Government prosecuted its appeals. That protection was an important aspect of our holding in Marion that prearrest delay is not cognizable under the Speedy Trial Clause. See 404 U.S., at 322-323. More importantly, in contrast to MacDonald, the Government has not "dropped" anything in *320 this case.[3] There has been at all relevant times a case on a court docket captioned United States v. Loud Hawk I can think of no more formal indication that respondents stand accused by the Government.
The majority argues that while "the Government's desire to prosecute [respondents] was a matter of public record," that desire constituted only "[p]ublic suspicion" that is insufficient to call Sixth Amendment rights into play, citing Marion and MacDonald. Ante, at 311. The reason that the Government's desire to prosecute in both of those cases did not constitute an "accusation," however, is that the Government had not yet formalized its commitment. Indeed, in MacDonald, the Government dismissed the murder charges because it "concluded that they were untrue," 456 U.S., at 10, n. 12, thus acknowledging that the first formal accusation had been a mistake and extinguishing the prior probable-cause determination. In the present case, the Government has made no such confession of error and continues to align its full resources against respondents in judicial proceedings.
The most telling difference between this case and MacDonald, however, is the fact that respondents' liberty could have been taken from them at any time during the Government's *321 appeal. One of the primary purposes of the speedy trial right, of course, is to prevent prolonged restraints on liberty, id., at 8; Barker v. Wingo, 407 U. S., at 532, and the absence of any possibility of such restraints was a vital part of our MacDonald holding. See 456 U.S., at 9. In contrast, Congress has declared explicitly, in 18 U.S. C. § 3731, that a person in respondents' position shall be subject to the same restraints as an arrested defendant awaiting trial.[4] Thus the District Court had the undoubted authority to condition respondents' release on the posting of bail, or indeed to keep them in jail throughout the appeal, see 18 U.S. C. § 3142(e) (1982 ed., Supp. III). Respondents' release could have been accompanied by restrictions on travel, association, employment, abode, and firearms possession, or conditioned on their reporting regularly to law enforcement officers and/or keeping a curfew. See § 3142(c). Considering all the circumstances, therefore, I believe that respondents' position is most closely analogous to that of a defendant who has been arrested but not yet indicted.
B
As if acknowledging that the delay in this case is more analogous to postarrest, preindictment delay than to prearrest delay, the majority concedes that had respondents been incarcerated or forced to post bond during the Government's appeals, the automatic exclusion rule of MacDonald would not apply. Ante, at 311, n. 13. Yet, inexplicably, the majority then suggests that the Speedy Trial Clause applies to postarrest, preindictment delay only when the defendant has been subjected to " `actual restraints,' " ante, at 310, *322 quoting Marion, 404 U. S., at 320 (emphasis added by majority opinion). The majority completely misreads Marion while creating a rule that is flatly inconsistent with our prior holdings.
We held in Marion that prearrest delay is not cognizable under the Speedy Trial Clause, but we certainly did not disturb the settled rule that the Government's formal institution of criminal charges, whether through arrest or indictment, always calls the speedy trial right into play. See id., at 316-319; see also United States v. Gouveia, 467 U.S. 180, 185-186 (1984). Although it specified detention and bail as possible deleterious effects of a formal criminal charge, Marion nowhere suggested that it is the restraints themselves, rather than the assertion of probable cause, that constitute an accusation. Nor did we hold that a criminal charge has less constitutional significance when a defendant is released on recognizance rather than on bail. See 404 U.S., at 321, n. 12. The majority identifies no logic or precedent supporting its novel conclusion that a defendant who is arrested and released on bail is "accused," while a defendant who is arrested and released without bail, on the same evidence, is not "accused."[5]
Indeed, we have rejected precisely the interpretation of Marion that the majority now adopts. In Dillingham v. United States, 423 U.S. 64 (1975) (per curiam), we held that *323 Marion does not require "actual prejudice" to invoke the speedy trial right for postarrest, preindictment delay. Such "actual prejudice" included the "actual restraints" that the majority now requires. The Court of Appeals in that case noted that the defendant was released on bond, but without any other restrictions, pending trial. After citing Marion, it held that "any increased strain on this man's life which followed his arrest . . . does not rise to the level of substantial actual prejudice." United States v. Palmer, 502 F.2d 1233, 1237 (CA5 1974), rev'd sub nom. Dillingham v. United States, supra. We summarily rejected the "actual prejudice" rationale, and the majority gives no reason whatsoever for resurrecting it today.[6]
There can be no question that one who had been arrested and released under 18 U.S. C. § 3141(a) (1982 ed., Supp. III) would be entitled, under Marion, to the protections of the Speedy Trial Clause. Because respondents were by statute subject to the same restraints as that hypothetical defendant, I am at a loss to understand why they should enjoy less protection.
II
The majority also declines to hold the Government accountable for delay attributable to appeals during which respondents *324 were under indictment. In doing so the majority emphasizes the second Barker factor the reason for the delay, see 407 U.S., at 530. Because it concludes that "[t]here is no showing of bad faith or dilatory purpose on the Government's part," the majority declines to accord any "effective weight" to this factor in the speedy trial balance. Ante, at 316. In reaching this conclusion, it virtually ignores the most obvious "reason for the delay" in this case the fact that the Court of Appeals was unable to decide these appeals in a reasonably prompt manner.
In Barker, we explained the application of the "reason for the delay" factor as follows:
"[D]ifferent weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant." 407 U.S., at 531 (footnote omitted).
The majority's application of this factor to the appellate delays in this case makes Government misconduct or bad faith a virtual prerequisite to a finding of a speedy trial violation. Seizing upon the approach of some of the Courts of Appeals,[7] the majority analyzes the reason behind the appellate delay solely in terms of the reasonableness of the Government's behavior in taking and prosecuting the appeal. This approach is inconsistent with the policies behind the speedy trial right. We recognized in Barker that the right protects both the defendant's interest in fairness and society's interest in providing *325 swift justice. Id., at 519. Courts as well as prosecutors must necessarily work to promote those interests if they are to have any vitality. Because it is the Government as a whole including the courts that bears the responsibility to provide a speedy trial, the prosecutor's good faith cannot suffice to discharge that responsibility.[8]
The Court of Appeals frankly admitted that "most of the delay must be attributed to the processes of this court," 741 F.2d 1184, 1191 (CA9 1984), a conclusion that is difficult to escape. This case involves appeals from pretrial rulings. The Court of Appeals had every reason to know that these appeals should have been ruled upon as expeditiously as possible. See that court's Rule 20. Yet it took over five years for the Court of Appeals to decide two appeals, one of them "expedited." No complicated analysis is needed to identify the reason for the delay in this case.
I would hold, simply, that a nonfrivolous appeal by any party permits a reasonable delay in the proceedings. The number and complexity of the issues on appeal, or the number of parties, might permit a greater or lesser delay in a given case. The government, not the defendant, must suffer the ultimate consequences of delays attributable to "over-crowded courts," ibid., even at the appellate level.[9] In the *326 present case, the amount of time that the appeals consumed is patently unreasonable. I would therefore weigh the second Barker factor against the Government in this case.
III
The majority has seriously misapplied our precedents in concluding that delay resulting when the government appeals the dismissal of an indictment is excludable for speedy trial purposes unless the defendant is subjected to actual restraints during that appeal. Its application of Barker v. Wingo to this case also undercuts the very purpose of the speedy trial right. I respectfully dissent.
| The Court holds today that the Speedy Trial Clause of the Sixth Amendment does not apply to a Government appeal from a district court's dismissal of an indictment, unless the defendant is incarcerated or otherwise under restraint during that appeal. The majority supports this result by equating the present case to United That analysis, however, both ignores the considerable differences between this case and and gives short shrift to the interests protected by the Speedy Trial Clause. I further disagree with the majority's application *318 of to the remaining appellate delays in this case. I The majority concludes that when an appeal arises out of the district court's dismissal of an indictment, the lack of an outstanding indictment absolves the Government of its responsibility to provide a speedy trial. However, we have never conditioned Sixth Amendment rights solely on the presence of an outstanding indictment. Those rights attach to anyone who is "accused,"[1] and we have until now recognized that one may stand publicly accused without being under indictment. The majority offers two reasons for concluding that respondents did not enjoy the right to a speedy trial during the Government's appeals. First, respondents were suffering only "[p]ublic suspicion," ante, at 311, and not a formal accusation. Second, they were not subject to "actual restraints" on their liberty. Both of these rationales are seriously flawed. A In United we held that the Speedy Trial Clause does not apply until the Government, either through arrest or indictment, asserts probable cause to believe that a suspect has committed a crime. Before that time the individual, while possibly aware of the Government's suspicion, is not "the subject of public accusation," and his only protection against delay comes from the Due Process Clause and the applicable statute of limitations. The Court applied the same rationale in In that case, military charges of murder against an Army officer, were dropped after an investigation. was then given an honorable discharge, only to be indicted by a civilian grand jury nearly *319 four years later for the same murders. The Court held that this delay did not implicate the speedy trial right because "the Speedy Trial Clause has no application after the Government, acting in good faith, formally drops charges." The Court reasoned that after the termination of the first formal prosecution, was "in the same position as any other subject of a criminal investigation," and thus was no more an "accused" than was the defendant in before his arrest. The same cannot be said of respondents in the present case.[2] Unlike one who has not been arrested, or one who has had the charges against him dropped, respondents did not enjoy the protection of the statute of limitations while the Government prosecuted its appeals. That protection was an important aspect of our holding in that prearrest delay is not cognizable under the Speedy Trial Clause. See -323. More importantly, in contrast to the Government has not "dropped" anything in *320 this case.[3] There has been at all relevant times a case on a court docket captioned United v. Loud Hawk I can think of no more formal indication that respondents stand accused by the Government. The majority argues that while "the Government's desire to prosecute [respondents] was a matter of public record," that desire constituted only "[p]ublic suspicion" that is insufficient to call Sixth Amendment rights into play, citing and Ante, at 311. The reason that the Government's desire to prosecute in both of those cases did not constitute an "accusation," however, is that the Government had not yet formalized its commitment. Indeed, in the Government dismissed the murder charges because it "concluded that they were untrue," n. 12, thus acknowledging that the first formal accusation had been a mistake and extinguishing the prior probable-cause determination. In the present case, the Government has made no such confession of error and continues to align its full resources against respondents in judicial proceedings. The most telling difference between this case and however, is the fact that respondents' liberty could have been taken from them at any time during the Government's *321 appeal. One of the primary purposes of the speedy trial right, of course, is to prevent prolonged restraints on liberty, ; and the absence of any possibility of such restraints was a vital part of our holding. See In contrast, Congress has declared explicitly, in 18 U.S. C. 3731, that a person in respondents' position shall be subject to the same restraints as an arrested defendant awaiting trial.[4] Thus the District Court had the undoubted authority to condition respondents' release on the posting of bail, or indeed to keep them in jail throughout the appeal, see 18 U.S. C. 3142(e) (1982 ed., Supp. III). Respondents' release could have been accompanied by restrictions on travel, association, employment, abode, and firearms possession, or conditioned on their reporting regularly to law enforcement officers and/or keeping a curfew. See 3142(c). Considering all the circumstances, therefore, I believe that respondents' position is most closely analogous to that of a defendant who has been arrested but not yet indicted. B As if acknowledging that the delay in this case is more analogous to postarrest, preindictment delay than to prearrest delay, the majority concedes that had respondents been incarcerated or forced to post bond during the Government's appeals, the automatic exclusion rule of would not apply. Ante, at 311, n. 13. Yet, inexplicably, the majority then suggests that the Speedy Trial Clause applies to postarrest, preindictment delay only when the defendant has been subjected to " `actual restraints,' " ante, at 310, *322 quoting The majority completely misreads while creating a rule that is flatly inconsistent with our prior holdings. We held in that prearrest delay is not cognizable under the Speedy Trial Clause, but we certainly did not disturb the settled rule that the Government's formal institution of criminal charges, whether through arrest or indictment, always calls the speedy trial right into play. See ; see also United Although it specified detention and bail as possible deleterious effects of a formal criminal charge, nowhere suggested that it is the restraints themselves, rather than the assertion of probable cause, that constitute an accusation. Nor did we hold that a criminal charge has less constitutional significance when a defendant is released on recognizance rather than on bail. See 404 U.S., n. 12. The majority identifies no logic or precedent supporting its novel conclusion that a defendant who is arrested and released on bail is "accused," while a defendant who is arrested and released without bail, on the same evidence, is not "accused."[5] Indeed, we have rejected precisely the interpretation of that the majority now adopts. In we held that *323 does not require "actual prejudice" to invoke the speedy trial right for postarrest, preindictment delay. Such "actual prejudice" included the "actual restraints" that the majority now requires. The Court of Appeals in that case noted that the defendant was released on bond, but without any other restrictions, pending trial. After citing it held that "any increased strain on this man's life which followed his arrest does not rise to the level of substantial actual prejudice." United rev'd sub nom. We summarily rejected the "actual prejudice" rationale, and the majority gives no reason whatsoever for resurrecting it today.[6] There can be no question that one who had been arrested and released under 18 U.S. C. 3141(a) (1982 ed., Supp. III) would be entitled, under to the protections of the Speedy Trial Clause. Because respondents were by statute subject to the same restraints as that hypothetical defendant, I am at a loss to understand why they should enjoy less protection. II The majority also declines to hold the Government accountable for delay attributable to appeals during which respondents *324 were under indictment. In doing so the majority emphasizes the second Barker factor the reason for the delay, see Because it concludes that "[t]here is no showing of bad faith or dilatory purpose on the Government's part," the majority declines to accord any "effective weight" to this factor in the speedy trial balance. Ante, at 316. In reaching this conclusion, it virtually ignores the most obvious "reason for the delay" in this case the fact that the Court of Appeals was unable to decide these appeals in a reasonably prompt manner. In Barker, we explained the application of the "reason for the delay" factor as follows: "[D]ifferent weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant." The majority's application of this factor to the appellate delays in this case makes Government misconduct or bad faith a virtual prerequisite to a finding of a speedy trial violation. Seizing upon the approach of some of the Courts of Appeals,[7] the majority analyzes the reason behind the appellate delay solely in terms of the reasonableness of the Government's behavior in taking and prosecuting the appeal. This approach is inconsistent with the policies behind the speedy trial right. We recognized in Barker that the right protects both the defendant's interest in fairness and society's interest in providing *325 swift justice. Courts as well as prosecutors must necessarily work to promote those interests if they are to have any vitality. Because it is the Government as a whole including the courts that bears the responsibility to provide a speedy trial, the prosecutor's good faith cannot suffice to discharge that responsibility.[8] The Court of Appeals frankly admitted that "most of the delay must be attributed to the processes of this court," a conclusion that is difficult to escape. This case involves appeals from pretrial rulings. The Court of Appeals had every reason to know that these appeals should have been ruled upon as expeditiously as possible. See that court's Rule 20. Yet it took over five years for the Court of Appeals to decide two appeals, one of them "expedited." No complicated analysis is needed to identify the reason for the delay in this case. I would hold, simply, that a nonfrivolous appeal by any party permits a reasonable delay in the proceedings. The number and complexity of the issues on appeal, or the number of parties, might permit a greater or lesser delay in a given case. The government, not the defendant, must suffer the ultimate consequences of delays attributable to "over-crowded courts," ib even at the appellate level.[9] In the *326 present case, the amount of time that the appeals consumed is patently unreasonable. I would therefore weigh the second Barker factor against the Government in this case. III The majority has seriously misapplied our precedents in concluding that delay resulting when the government appeals the dismissal of an indictment is excludable for speedy trial purposes unless the defendant is subjected to actual restraints during that appeal. Its application of to this case also undercuts the very purpose of the speedy trial right. I respectfully dissent. |
Justice Kennedy | majority | false | Bartlett v. Strickland | 2009-03-09T00:00:00 | null | https://www.courtlistener.com/opinion/145901/bartlett-v-strickland/ | https://www.courtlistener.com/api/rest/v3/clusters/145901/ | 2,009 | 2008-030 | 1 | 5 | 4 | This case requires us to interpret § 2 of the Voting Rights Act of 1965, 79 Stat. 437, as amended, 42 U.S.C. § 1973 (2000 ed.). The question is whether the statute can be invoked to require state officials to draw election-district lines to allow a racial minority to join with other voters to elect the minority's candidate of choice, even where the racial minority is less than 50 percent of the voting-age population in the district to be drawn. To use election-law terminology: In a district that is not a majority-minority district, if a racial minority could elect its candidate of choice with support from crossover majority voters, can § 2 require the district to be drawn to accommodate this potential?
*1239 I
The case arises in a somewhat unusual posture. State authorities who created a district now invoke the Voting Rights Act as a defense. They argue that § 2 required them to draw the district in question in a particular way, despite state laws to the contrary. The state laws are provisions of the North Carolina Constitution that prohibit the General Assembly from dividing counties when drawing legislative districts for the State House and Senate. Art. II, §§ 3, 5. We will adopt the term used by the state courts and refer to both sections of the state constitution as the Whole County Provision. See Pender County v. Bartlett, 361 N.C. 491, 493, 649 S.E.2d 364, 366 (2007) (case below).
It is common ground that state election-law requirements like the Whole County Provision may be superseded by federal lawfor instance, the one-person, one-vote principle of the Equal Protection Clause of the United States Constitution. See Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362, 12 L. Ed. 2d 506 (1964). Here the question is whether § 2 of the Voting Rights Act requires district lines to be drawn that otherwise would violate the Whole County Provision. That, in turn, depends on how the statute is interpreted.
We begin with the election district. The North Carolina House of Representatives is the larger of the two chambers in the State's General Assembly. District 18 of that body lies in the southeastern part of North Carolina. Starting in 1991, the General Assembly drew District 18 to include portions of four counties, including Pender County, in order to create a district with a majority African-American voting-age population and to satisfy the Voting Rights Act. Following the 2000 census, the North Carolina Supreme Court, to comply with the Whole County Provision, rejected the General Assembly's first two statewide redistricting plans. See Stephenson v. Bartlett, 355 N.C. 354, 375, 562 S.E.2d 377, 392, stay denied, 535 U.S. 1301, 122 S. Ct. 1751, 152 L. Ed. 2d 1015 (2002) (Rehnquist, C. J., in chambers); Stephenson v. Bartlett, 357 N.C. 301, 314, 582 S.E.2d 247, 254 (2003).
District 18 in its present form emerged from the General Assembly's third redistricting attempt, in 2003. By that time the African-American voting-age population had fallen below 50 percent in the district as then drawn, and the General Assembly no longer could draw a geographically compact majority-minority district. Rather than draw District 18 to keep Pender County whole, however, the General Assembly drew it by splitting portions of Pender and New Hanover counties. District 18 has an African-American voting-age population of 39.36 percent. App. 139. Had it left Pender County whole, the General Assembly could have drawn District 18 with an African-American voting-age population of 35.33 percent. Id., at 73. The General Assembly's reason for splitting Pender County was to give African-American voters the potential to join with majority voters to elect the minority group's candidate of its choice. Ibid. Failure to do so, state officials now submit, would have diluted the minority group's voting strength in violation of § 2.
In May 2004, Pender County and the five members of its Board of Commissioners filed the instant suit in North Carolina state court against the Governor of North Carolina, the Director of the State Board of Elections, and other state officials. The plaintiffs alleged that the 2003 plan violated the Whole County Provision by splitting Pender County into two House districts. App. 5-14. The state-official defendants answered that dividing Pender County was required by § 2. Id., at 25. As the trial court recognized, the procedural posture of *1240 this case differs from most § 2 cases. Here the defendants raise § 2 as a defense. As a result, the trial court stated, they are "in the unusual position" of bearing the burden of proving that a § 2 violation would have occurred absent splitting Pender County to draw District 18. App. to Pet. for Cert. 90a.
The trial court first considered whether the defendant state officials had established the three threshold requirements for § 2 liability under Thornburg v. Gingles, 478 U.S. 30, 50-51, 106 S. Ct. 2752, 92 L. Ed. 2d 25 (1986)namely, (1) that the minority group "is sufficiently large and geographically compact to constitute a majority in a single-member district," (2) that the minority group is "politically cohesive," and (3) "that the white majority votes sufficiently as a bloc to enable it ... usually to defeat the minority's preferred candidate."
As to the first Gingles requirement, the trial court concluded that, although African-Americans were not a majority of the voting-age population in District 18, the district was a "de facto" majority-minority district because African-Americans could get enough support from crossover majority voters to elect the African-Americans' preferred candidate. The court ruled that African-Americans in District 18 were politically cohesive, thus satisfying the second requirement. And later, the plaintiffs stipulated that the third Gingles requirement was met. App. to Pet. for Cert. at 102a-103a, 130a. The court then determined, based on the totality of the circumstances, that § 2 required the General Assembly to split Pender County. The court sustained the lines for District 18 on that rationale. Id., at 116a-118a.
Three of the Pender County Commissioners appealed the trial court's ruling that the defendants had established the first Gingles requirement. The Supreme Court of North Carolina reversed. It held that a "minority group must constitute a numerical majority of the voting population in the area under consideration before Section 2 ... requires the creation of a legislative district to prevent dilution of the votes of that minority group." 361 N.C., at 502, 649 S.E.2d, at 371. On that premise the State Supreme Court determined District 18 was not mandated by § 2 because African-Americans do not "constitute a numerical majority of citizens of voting age." Id., at 507, 649 S.E.2d, at 374. It ordered the General Assembly to redraw District 18. Id., at 510, 649 S.E.2d, at 376.
We granted certiorari, 552 U.S. ___, 128 S. Ct. 1648, 170 L. Ed. 2d 352 (2008), and now affirm.
II
Passage of the Voting Rights Act of 1965 was an important step in the struggle to end discriminatory treatment of minorities who seek to exercise one of the most fundamental rights of our citizens: the right to vote. Though the Act as a whole was the subject of debate and controversy, § 2 prompted little criticism. The likely explanation for its general acceptance is that, as first enacted, § 2 tracked, in part, the text of the Fifteenth Amendment. It prohibited practices "imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color." 79 Stat. 437; cf. U.S. Const., Amdt. 15 ("The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude"); see also S.Rep. No. 162, 89th Cong., 1st Sess., pt. 3, pp. 19-20 (1965). In Mobile v. Bolden, 446 U.S. 55, 60-61, 100 S. Ct. 1490, 64 L. Ed. 2d 47 (1980), this Court held that § 2, as it *1241 then read, "no more than elaborates upon... the Fifteenth Amendment" and was "intended to have an effect no different from that of the Fifteenth Amendment itself."
In 1982, after the Mobile ruling, Congress amended § 2, giving the statute its current form. The original Act had employed an intent requirement, prohibiting only those practices "imposed or applied... to deny or abridge" the right to vote. 79 Stat. 437. The amended version of § 2 requires consideration of effects, as it prohibits practices "imposed or applied ... in a manner which results in a denial or abridgment" of the right to vote. 96 Stat. 134, 42 U.S.C. § 1973(a) (2000 ed.). The 1982 amendments also added a subsection, § 2(b), providing a test for determining whether a § 2 violation has occurred. The relevant text of the statute now states:
"(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color [or membership in a language minority group], as provided in subsection (b) of this section.
"(b) A violation of subsection (a) of this section is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." 42 U.S.C. § 1973.
This Court first construed the amended version of § 2 in Thornburg v. Gingles, 478 U.S. 30, 106 S. Ct. 2752, 92 L. Ed. 2d 25 (1986). In Gingles, the plaintiffs were African-American residents of North Carolina who alleged that multimember districts diluted minority voting strength by submerging black voters into the white majority, denying them an opportunity to elect a candidate of their choice. The Court identified three "necessary preconditions" for a claim that the use of multimember districts constituted actionable vote dilution under § 2:(1) The minority group must be "sufficiently large and geographically compact to constitute a majority in a single-member district," (2) the minority group must be "politically cohesive," and (3) the majority must vote "sufficiently as a bloc to enable it ... usually to defeat the minority's preferred candidate." Id., at 50-51, 106 S. Ct. 2752.
The Court later held that the three Gingles requirements apply equally in § 2 cases involving single-member districts, such as a claim alleging vote dilution because a geographically compact minority group has been split between two or more single-member districts. Growe v. Emison, 507 U.S. 25, 40-41, 113 S. Ct. 1075, 122 L. Ed. 2d 388 (1993). In a § 2 case, only when a party has established the Gingles requirements does a court proceed to analyze whether a violation has occurred based on the totality of the circumstances. Gingles, supra, at 79, 106 S. Ct. 2752; see also Johnson v. De Grandy, 512 U.S. 997, 1013, 114 S. Ct. 2647, 129 L. Ed. 2d 775 (1994).
III
A
This case turns on whether the first Gingles requirement can be satisfied when the minority group makes up less than 50 percent of the voting-age population in the potential election district. The parties *1242 agree on all other parts of the Gingles analysis, so the dispositive question is: What size minority group is sufficient to satisfy the first Gingles requirement?
At the outset the answer might not appear difficult to reach, for the Gingles Court said the minority group must "demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district." 478 U.S., at 50, 106 S. Ct. 2752. This would seem to end the matter, as it indicates the minority group must demonstrate it can constitute "a majority." But in Gingles and again in Growe the Court reserved what it considered to be a separate questionwhether, "when a plaintiff alleges that a voting practice or procedure impairs a minority's ability to influence, rather than alter, election results, a showing of geographical compactness of a minority group not sufficiently large to constitute a majority will suffice." Growe, supra, at 41, n. 5, 113 S. Ct. 1075; see also Gingles, supra, at 46-47, n. 12, 106 S. Ct. 2752. The Court has since applied the Gingles requirements in § 2 cases but has declined to decide the minimum size minority group necessary to satisfy the first requirement. See Voinovich v. Quilter, 507 U.S. 146, 154, 113 S. Ct. 1149, 122 L. Ed. 2d 500 (1993); De Grandy, supra, at 1009, 114 S. Ct. 2647; League of United Latin American Citizens v. Perry, 548 U.S. 399, 443, 126 S. Ct. 2594, 165 L. Ed. 2d 609 (2006) (opinion of KENNEDY, J.) (LULAC). We must consider the minimum-size question in this case.
It is appropriate to review the terminology often used to describe various features of election districts in relation to the requirements of the Voting Rights Act. In majority-minority districts, a minority group composes a numerical, working majority of the voting-age population. Under present doctrine, § 2 can require the creation of these districts. See, e.g., Voinovich, supra, at 154, 113 S. Ct. 1149 ("Placing black voters in a district in which they constitute a sizeable and therefore `safe' majority ensures that they are able to elect their candidate of choice"); but see Holder v. Hall, 512 U.S. 874, 922-923, 114 S. Ct. 2581, 129 L. Ed. 2d 687 (1994) (THOMAS, J., concurring in judgment). At the other end of the spectrum are influence districts, in which a minority group can influence the outcome of an election even if its preferred candidate cannot be elected. This Court has held that § 2 does not require the creation of influence districts. LULAC, supra, at 445, 126 S. Ct. 2594 (opinion of KENNEDY, J.).
The present case involves an intermediate type of districta so-called crossover district. Like an influence district, a crossover district is one in which minority voters make up less than a majority of the voting-age population. But in a crossover district, the minority population, at least potentially, is large enough to elect the candidate of its choice with help from voters who are members of the majority and who cross over to support the minority's preferred candidate. 361 N.C., at 501-502, 649 S.E.2d, at 371 (case below). This Court has referred sometimes to crossover districts as "coalitional" districts, in recognition of the necessary coalition between minority and crossover majority voters. See Georgia v. Ashcroft, 539 U.S. 461, 483, 123 S. Ct. 2498, 156 L. Ed. 2d 428 (2003); see also Pildes, Is Voting Rights Law Now at War with Itself? Social Science and Voting Rights in the 2000s, 80 N.C.L.Rev. 1517, 1539 (2002) (hereinafter Pildes). But that term risks confusion with coalition-district claims in which two minority groups form a coalition to elect the candidate of the coalition's choice. See, e.g., Nixon v. Kent County, 76 F.3d 1381, 1393 (C.A.6 1996) (en banc). We do not address *1243 that type of coalition district here. The petitioners in the present case (the state officials who were the defendants in the trial court) argue that § 2 requires a crossover district, in which minority voters might be able to persuade some members of the majority to cross over and join with them.
Petitioners argue that although crossover districts do not include a numerical majority of minority voters, they still satisfy the first Gingles requirement because they are "effective minority districts." Under petitioners' theory keeping Pender County whole would have violated § 2 by cracking the potential crossover district that they drew as District 18. See Gingles, 478 U.S., at 46, n. 11, 106 S. Ct. 2752 (vote dilution "may be caused by the dispersal of blacks into districts in which they constitute an ineffective minority of voters"). So, petitioners contend, § 2 required them to override state law and split Pender County, drawing District 18 with an African-American voting-age population of 39.36 percent rather than keeping Pender County whole and leaving District 18 with an African-American voting-age population of 35.33 percent. We reject that claim.
First, we conclude, the petitioners' theory is contrary to the mandate of § 2. The statute requires a showing that minorities "have less opportunity than other members of the electorate to ... elect representatives of their choice." 42 U.S.C. § 1973(b) (2000 ed.). But because they form only 39 percent of the voting-age population in District 18, African-Americans standing alone have no better or worse opportunity to elect a candidate than does any other group of voters with the same relative voting strength. That is, African-Americans in District 18 have the opportunity to join other votersincluding other racial minorities, or whites, or bothto reach a majority and elect their preferred candidate. They cannot, however, elect that candidate based on their own votes and without assistance from others. Recognizing a § 2 claim in this circumstance would grant minority voters "a right to preserve their strength for the purposes of forging an advantageous political alliance." Hall v. Virginia, 385 F.3d 421, 431 (C.A.4 2004); see also Voinovich, supra, at 154, 113 S. Ct. 1149 (minorities in crossover districts "could not dictate electoral outcomes independently"). Nothing in § 2 grants special protection to a minority group's right to form political coalitions. "[M]inority voters are not immune from the obligation to pull, haul, and trade to find common political ground." De Grandy, 512 U.S., at 1020, 114 S. Ct. 2647.
Although the Court has reserved the question we confront today and has cautioned that the Gingles requirements "cannot be applied mechanically," Voinovich, supra, at 158, 113 S. Ct. 1149, the reasoning of our cases does not support petitioners' claims. Section 2 does not impose on those who draw election districts a duty to give minority voters the most potential, or the best potential, to elect a candidate by attracting crossover voters. In setting out the first requirement for § 2 claims, the Gingles Court explained that "[u]nless minority voters possess the potential to elect representatives in the absence of the challenged structure or practice, they cannot claim to have been injured by that structure or practice." 478 U.S., at 50, n. 17, 106 S. Ct. 2752. The Growe Court stated that the first Gingles requirement is "needed to establish that the minority has the potential to elect a representative of its own choice in some single-member district." 507 U.S., at 40, 113 S. Ct. 1075. Without such a showing, "there neither has been a wrong nor can be a remedy." Id., at 41, 113 S. Ct. 1075. *1244 There is a difference between a racial minority group's "own choice" and the choice made by a coalition. In Voinovich, the Court stated that the first Gingles requirement "would have to be modified or eliminated" to allow cross-over-district claims. 507 U.S., at 158, 113 S. Ct. 1149. Only once, in dicta, has this Court framed the first Gingles requirement as anything other than a majority-minority rule. See De Grandy, 512 U.S., at 1008, 114 S. Ct. 2647 (requiring "a sufficiently large minority population to elect candidates of its choice"). And in the same case, the Court rejected the proposition, inherent in petitioners' claim here, that § 2 entitles minority groups to the maximum possible voting strength:
"[R]eading § 2 to define dilution as any failure to maximize tends to obscure the very object of the statute and to run counter to its textually stated purpose. One may suspect vote dilution from political famine, but one is not entitled to suspect (much less infer) dilution from mere failure to guarantee a political feast." Id., at 1016-1017, 114 S. Ct. 2647.
Allowing crossover-district claims would require us to revise and reformulate the Gingles threshold inquiry that has been the baseline of our § 2 jurisprudence. Mandatory recognition of claims in which success for a minority depends upon crossover majority voters would create serious tension with the third Gingles requirement that the majority votes as a bloc to defeat minority-preferred candidates. It is difficult to see how the majority-bloc-voting requirement could be met in a district where, by definition, white voters join in sufficient numbers with minority voters to elect the minority's preferred candidate. (We are skeptical that the bloc-voting test could be satisfied here, for example, where minority voters in District 18 cannot elect their candidate of choice without support from almost 20 percent of white voters. We do not confront that issue, however, because for some reason respondents conceded the third Gingles requirement in state court.)
As the Gingles Court explained, "in the absence of significant white bloc voting it cannot be said that the ability of minority voters to elect their chosen representatives is inferior to that of white voters." 478 U.S., at 49, n. 15, 106 S. Ct. 2752. Were the Court to adopt petitioners' theory and dispense with the majority-minority requirement, the ruling would call in question the Gingles framework the Court has applied under § 2. See LULAC, 548 U.S., at 490, n. 8, 126 S. Ct. 2594. (SOUTER, J., concurring in part and dissenting in part) ("All aspects of our established analysis for majority-minority districts in Gingles and its progeny may have to be rethought in analyzing ostensible coalition districts"); cf. Metts v. Murphy, 363 F.3d 8, 12 (C.A.1 2004) (en banc) (per curiam) (allowing influence-district claim to survive motion to dismiss but noting "there is tension in this case for plaintiffs in any effort to satisfy both the first and third prong of Gingles").
We find support for the majority-minority requirement in the need for workable standards and sound judicial and legislative administration. The rule draws clear lines for courts and legislatures alike. The same cannot be said of a less exacting standard that would mandate crossover districts under § 2. Determining whether a § 2 claim would liei.e., determining whether potential districts could function as crossover districtswould place courts in the untenable position of predicting many political variables and tying them to race-based assumptions. The judiciary would be directed to make predictions or adopt premises that even experienced polling *1245 analysts and political experts could not assess with certainty, particularly over the long term. For example, courts would be required to pursue these inquiries: What percentage of white voters supported minority-preferred candidates in the past? How reliable would the crossover votes be in future elections? What types of candidates have white and minority voters supported together in the past and will those trends continue? Were past crossover votes based on incumbency and did that depend on race? What are the historical turnout rates among white and minority voters and will they stay the same? Those questions are speculative, and the answers (if they could be supposed) would prove elusive. A requirement to draw election districts on answers to these and like inquiries ought not to be inferred from the text or purpose of § 2. Though courts are capable of making refined and exacting factual inquiries, they "are inherently ill-equipped" to "make decisions based on highly political judgments" of the sort that crossover-district claims would require. Holder, 512 U.S., at 894, 114 S. Ct. 2581 (THOMAS, J., concurring in judgment). There is an underlying principle of fundamental importance: We must be most cautious before interpreting a statute to require courts to make inquiries based on racial classifications and race-based predictions. The statutory mandate petitioners urge us to find in § 2 raises serious constitutional questions. See infra, at 1246-1248.
Heightening these concerns even further is the fact that § 2 applies nationwide to every jurisdiction that must draw lines for election districts required by state or local law. Crossover-district claims would require courts to make predictive political judgments not only about familiar, two-party contests in large districts but also about regional and local jurisdictions that often feature more than two parties or candidates. Under petitioners' view courts would face the difficult task of discerning crossover patterns in nonpartisan contests for a city commission, a school board, or a local water authority. The political data necessary to make such determinations are nonexistent for elections in most of those jurisdictions. And predictions would be speculative at best given that, especially in the context of local elections, voters' personal affiliations with candidates and views on particular issues can play a large role.
Unlike any of the standards proposed to allow crossover-district claims, the majority-minority rule relies on an objective, numerical test: Do minorities make up more than 50 percent of the voting-age population in the relevant geographic area? That rule provides straightforward guidance to courts and to those officials charged with drawing district lines to comply with § 2. See LULAC, supra, at 485, 126 S. Ct. 2594 (opinion of SOUTER, J.) (recognizing need for "clear-edged rule"). Where an election district could be drawn in which minority voters form a majority but such a district is not drawn, or where a majority-minority district is cracked by assigning some voters elsewhere, thenassuming the other Gingles factors are also satisfieddenial of the opportunity to elect a candidate of choice is a present and discernible wrong that is not subject to the high degree of speculation and prediction attendant upon the analysis of crossover claims. Not an arbitrary invention, the majority-minority rule has its foundation in principles of democratic governance. The special significance, in the democratic process, of a majority means it is a special wrong when a minority group has 50 percent or more of the voting population and could constitute a compact voting majority but, despite racially polarized bloc voting, that group is not put into a district.
*1246 Given the text of § 2, our cases interpreting that provision, and the many difficulties in assessing § 2 claims without the restraint and guidance provided by the majority-minority rule, no federal court of appeals has held that § 2 requires creation of coalition districts. Instead, all to consider the question have interpreted the first Gingles factor to require a majority-minority standard. See Hall, 385 F.3d, at 427-430 (C.A.4 2004), cert. denied, 544 U.S. 961, 125 S. Ct. 1725, 161 L. Ed. 2d 602 (2005); Valdespino v. Alamo Heights Independent School Dist., 168 F.3d 848, 852-853 (C.A.5 1999), cert. denied, 528 U.S. 1114, 120 S. Ct. 931, 145 L. Ed. 2d 811 (2000); Cousin v. Sundquist, 145 F.3d 818, 828-829 (C.A.6 1998), cert. denied, 525 U.S. 1138, 119 S. Ct. 1026, 143 L. Ed. 2d 37 (1999); Sanchez v. Colorado, 97 F.3d 1303, 1311-1312 (C.A.10 1996), cert. denied, 520 U.S. 1229, 117 S. Ct. 1820, 137 L. Ed. 2d 1028 (1997); Romero v. Pomona, 883 F.2d 1418, 1424, n. 7, 1425-1426 (C.A.9 1989), overruled on other grounds, 914 F.2d 1136, 1141 (C.A.9 1990); McNeil v. Springfield Park Dist., 851 F.2d 937, 947 (C.A.7 1988), cert. denied, 490 U.S. 1031, 109 S. Ct. 1769, 104 L. Ed. 2d 204 (1989). Cf. Metts, 363 F.3d, at 11 (expressing unwillingness "at the complaint stage to foreclose the possibility" of influence-district claims). We decline to depart from the uniform interpretation of § 2 that has guided federal courts and state and local officials for more than 20 years.
To be sure, the Gingles requirements "cannot be applied mechanically and without regard to the nature of the claim." Voinovich, 507 U.S., at 158, 113 S. Ct. 1149. It remains the rule, however, that a party asserting § 2 liability must show by a preponderance of the evidence that the minority population in the potential election district is greater than 50 percent. No one contends that the African-American voting-age population in District 18 exceeds that thresh-old. Nor does this case involve allegations of intentional and wrongful conduct. We therefore need not consider whether intentional discrimination affects the Gingles analysis. Cf. Brief for United States as Amicus Curiae 14 (evidence of discriminatory intent "tends to suggest that the jurisdiction is not providing an equal opportunity to minority voters to elect the representative of their choice, and it is therefore unnecessary to consider the majority-minority requirement before proceeding to the ultimate totality-of-the-circumstances analysis"); see also Garza v. County of Los Angeles, 918 F.2d 763, 771 (C.A.9 1990). Our holding does not apply to cases in which there is intentional discrimination against a racial minority.
B
In arguing for a less restrictive interpretation of the first Gingles requirement petitioners point to the text of § 2 and its guarantee that political processes be "equally open to participation" to protect minority voters' "opportunity ... to elect representatives of their choice." 42 U.S.C. § 1973(b) (2000 ed.). An "opportunity," petitioners argue, occurs in crossover districts as well as majority-minority districts; and these extended opportunities, they say, require § 2 protection.
But petitioners put emphasis on the word "opportunity" at the expense of the word "equally." The statute does not protect any possible opportunity or mechanism through which minority voters could work with other constituencies to elect their candidate of choice. Section 2 does not guarantee minority voters an electoral advantage. Minority groups in crossover districts cannot form a voting majority without crossover voters. In those districts minority voters have the same opportunity to elect their candidate as any *1247 other political group with the same relative voting strength.
The majority-minority rule, furthermore, is not at odds with § 2's totality-of-the-circumstances test. The Court in De Grandy confirmed "the error of treating the three Gingles conditions as exhausting the enquiry required by § 2." 512 U.S., at 1013, 114 S. Ct. 2647. Instead the Gingles requirements are preconditions, consistent with the text and purpose of § 2, to help courts determine which claims could meet the totality-of-the-circumstances standard for a § 2 violation. See Growe, 507 U.S., at 40, 113 S. Ct. 1075 (describing the "Gingles threshold factors").
To the extent there is any doubt whether § 2 calls for the majority-minority rule, we resolve that doubt by avoiding serious constitutional concerns under the Equal Protection Clause. See Clark v. Martinez, 543 U.S. 371, 381-382, 125 S. Ct. 716, 160 L. Ed. 2d 734 (2005) (canon of constitutional avoidance is "a tool for choosing between competing plausible interpretations of a statutory text, resting on the reasonable presumption that Congress did not intend the alternative which raises serious constitutional doubts"). Of course, the "moral imperative of racial neutrality is the driving force of the Equal Protection Clause," and racial classifications are permitted only "as a last resort." Richmond v. J.A. Croson Co., 488 U.S. 469, 518, 519, 109 S. Ct. 706, 102 L. Ed. 2d 854 (1989) (KENNEDY, J., concurring in part and concurring in judgment). "Racial classifications with respect to voting carry particular dangers. Racial gerrymandering, even for remedial purposes, may balkanize us into competing racial factions; it threatens to carry us further from the goal of a political system in which race no longer mattersa goal that the Fourteenth and Fifteenth Amendments embody, and to which the Nation continues to aspire." Shaw v. Reno, 509 U.S. 630, 657, 113 S. Ct. 2816, 125 L. Ed. 2d 511 (1993). If § 2 were interpreted to require crossover districts throughout the Nation, "it would unnecessarily infuse race into virtually every redistricting, raising serious constitutional questions." LULAC, 548 U.S., at 446, 126 S. Ct. 2594 (opinion of KENNEDY, J.); see also Ashcroft, 539 U.S., at 491, 123 S. Ct. 2498 (KENNEDY, J., concurring). That interpretation would result in a substantial increase in the number of mandatory districts drawn with race as "the predominant factor motivating the legislature's decision." Miller v. Johnson, 515 U.S. 900, 916, 115 S. Ct. 2475, 132 L. Ed. 2d 762 (1995).
On petitioners' view of the case courts and legislatures would need to scrutinize every factor that enters into districting to gauge its effect on crossover voting. Injecting this racial measure into the nationwide districting process would be of particular concern with respect to consideration of party registration or party influence. The easiest and most likely alliance for a group of minority voters is one with a political party, and some have suggested using minority voters' strength within a particular party as the proper yardstick under the first Gingles requirement. See, e.g., LULAC, supra, at 485-486, 126 S. Ct. 2594 (opinion of SOUTER, J.) (requiring only "that minority voters ... constitute a majority of those voting in the primary of... the party tending to win in the general election"). That approach would replace an objective, administrable rule with a difficult "judicial inquiry into party rules and local politics" to determine whether a minority group truly "controls" the dominant party's primary process. McLoughlin, Gingles in Limbo: Coalitional Districts, Party Primaries and Manageable Vote Dilution Claims, 80 N.Y.U.L.Rev. 312, 349 (2005). More troubling still is the inquiry's *1248 fusion of race and party affiliation as a determinant when partisan considerations themselves may be suspect in the drawing of district lines. See Vieth v. Jubelirer, 541 U.S. 267, 317, 124 S. Ct. 1769, 158 L. Ed. 2d 546 (2004) (STEVENS, J., dissenting); id., at 316, 124 S. Ct. 1769 (KENNEDY, J., concurring in judgment); see also Pildes 1565 (crossover-district requirement would essentially result in political party "entitlement to ... a certain number of seats"). Disregarding the majority-minority rule and relying on a combination of race and party to presume an effective majority would involve the law and courts in a perilous enterprise. It would rest on judicial predictions, as a matter of law, that race and party would hold together as an effective majority over timeat least for the decennial apportionment cycles and likely beyond. And thus would the relationship between race and party further distort and frustrate the search for neutral factors and principled rationales for districting.
Petitioners' approach would reverse the canon of avoidance. It invites the divisive constitutional questions that are both unnecessary and contrary to the purposes of our precedents under the Voting Rights Act. Given the consequences of extending racial considerations even further into the districting process, we must not interpret § 2 to require crossover districts.
C
Our holding that § 2 does not require crossover districts does not consider the permissibility of such districts as a matter of legislative choice or discretion. Assuming a majority-minority district with a substantial minority population, a legislative determination, based on proper factors, to create two crossover districts may serve to diminish the significance and influence of race by encouraging minority and majority voters to work together toward a common goal. The option to draw such districts gives legislatures a choice that can lead to less racial isolation, not more. And as the Court has noted in the context of § 5 of the Voting Rights Act, "various studies have suggested that the most effective way to maximize minority voting strength may be to create more influence or [crossover] districts." Ashcroft, 539 U.S., at 482, 123 S. Ct. 2498. Much like § 5, § 2 allows States to choose their own method of complying with the Voting Rights Act, and we have said that may include drawing crossover districts. See id., at 480-483, 123 S. Ct. 2498. When we address the mandate of § 2, however, we must note it is not concerned with maximizing minority voting strength, De Grandy, 512 U.S., at 1022, 114 S. Ct. 2647; and, as a statutory matter, § 2 does not mandate creating or preserving crossover districts.
Our holding also should not be interpreted to entrench majority-minority districts by statutory command, for that, too, could pose constitutional concerns. See Miller v. Johnson, supra; Shaw v. Reno, supra. States that wish to draw crossover districts are free to do so where no other prohibition exists. Majority-minority districts are only required if all three Gingles factors are met and if § 2 applies based on a totality of the circumstances. In areas with substantial crossover voting it is unlikely that the plaintiffs would be able to establish the third Gingles preconditionbloc voting by majority voters. See supra, at 1244. In those areas majority-minority districts would not be required in the first place; and in the exercise of lawful discretion States could draw crossover districts as they deemed appropriate. See Pildes 1567 ("Districts could still be designed in such places that encouraged coalitions across racial lines, *1249 but these districts would result from legislative choice, not ... obligation"). States canand in proper cases shoulddefend against alleged § 2 violations by pointing to crossover voting patterns and to effective crossover districts. Those can be evidence, for example, of diminished bloc voting under the third Gingles factor or of equal political opportunity under the § 2 totality-of-the-circumstances analysis. And if there were a showing that a State intentionally drew district lines in order to destroy otherwise effective crossover districts, that would raise serious questions under both the Fourteenth and Fifteenth Amendments. See Reno v. Bossier Parish School Bd., 520 U.S. 471, 481-482, 117 S. Ct. 1491, 137 L. Ed. 2d 730 (1997); Brief for United States as Amicus Curiae 13-14. There is no evidence of discriminatory intent in this case, however. Our holding recognizes only that there is no support for the claim that § 2 can require the creation of crossover districts in the first instance.
Petitioners claim the majority-minority rule is inconsistent with § 5, but we rejected a similar argument in LULAC, 548 U.S., at 446, 126 S. Ct. 2594 (opinion of KENNEDY, J.). The inquiries under §§ 2 and 5 are different. Section 2 concerns minority groups' opportunity "to elect representatives of their choice," 42 U.S.C. § 1973(b) (2000 ed.), while the more stringent § 5 asks whether a change has the purpose or effect of "denying or abridging the right to vote," § 1973c. See LULAC, supra, at 446, 126 S. Ct. 2594; Bossier Parish, supra, at 476-480, 117 S. Ct. 1491. In LULAC, we held that although the presence of influence districts is relevant for the § 5 retrogression analysis, "the lack of such districts cannot establish a § 2 violation." 548 U.S., at 446, 126 S. Ct. 2594 (opinion of KENNEDY, J.); see also Ashcroft, 539 U.S., at 482-483, 123 S. Ct. 2498. The same analysis applies for crossover districts: Section 5 "leaves room" for States to employ crossover districts, id., at 483, 123 S. Ct. 2498, but § 2 does not require them.
IV
Some commentators suggest that racially polarized voting is waningas evidenced by, for example, the election of minority candidates where a majority of voters are white. See Note, The Future of Majority-Minority Districts in Light of Declining Racially Polarized Voting, 116 Harv. L.Rev. 2208, 2209 (2003); see also id., at 2216-2222; Pildes 1529-1539; Bullock & Dunn, The Demise of Racial Districting and the Future of Black Representation, 48 Emory L.J. 1209 (1999). Still, racial discrimination and racially polarized voting are not ancient history. Much remains to be done to ensure that citizens of all races have equal opportunity to share and participate in our democratic processes and traditions; and § 2 must be interpreted to ensure that continued progress.
It would be an irony, however, if § 2 were interpreted to entrench racial differences by expanding a "statute meant to hasten the waning of racism in American politics." De Grandy, supra, at 1020, 114 S. Ct. 2647. Crossover districts are, by definition, the result of white voters joining forces with minority voters to elect their preferred candidate. The Voting Rights Act was passed to foster this cooperation. We decline now to expand the reaches of § 2 to require, by force of law, the voluntary cooperation our society has achieved. Only when a geographically compact group of minority voters could form a majority in a single-member district has the first Gingles requirement been met.
*1250 The judgment of the Supreme Court of North Carolina is affirmed.
It is so ordered.
Justice THOMAS, with whom Justice SCALIA joins, concurring in the judgment. | This case requires us to interpret 2 of the Voting Rights Act of 1965, as amended, 42 U.S.C. 1973 ( ed.). The question is whether the statute can be invoked to require state officials to draw election-district lines to allow a racial minority to join with other voters to elect the minority's candidate of choice, even where the racial minority is less than 50 percent of the voting-age population in the district to be drawn. To use election-law terminology: In a district that is not a majority-minority district, if a racial minority could elect its candidate of choice with support from crossover majority voters, can 2 require the district to be drawn to accommodate this potential? *39 I The case arises in a somewhat unusual posture. State authorities who created a district now invoke the Voting Rights Act as a defense. They argue that 2 required them to draw the district in question in a particular way, despite state laws to the contrary. The state laws are provisions of the North Carolina Constitution that prohibit the General Assembly from dividing counties when drawing legislative districts for the State House and Senate. Art. II, 3, 5. We will adopt the term used by the state courts and refer to both sections of the state constitution as the Whole County Provision. See Pender It is common ground that state election-law requirements like the Whole County Provision may be superseded by federal lawfor instance, the one-person, one-vote principle of the Equal Protection Clause of the United States Constitution. See Here the question is whether 2 of the Voting Rights Act requires district lines to be drawn that otherwise would violate the Whole County Provision. That, in turn, depends on how the statute is interpreted. We begin with the election district. The North Carolina House of Representatives is the larger of the two chambers in the State's General Assembly. District 18 of that body lies in the southeastern part of North Carolina. Starting in 1991, the General Assembly drew District 18 to include portions of four counties, including Pender County, in order to create a district with a majority African-American voting-age population and to satisfy the Voting Rights Act. Following the census, the North Carolina Supreme Court, to comply with the Whole County Provision, rejected the General Assembly's first two statewide redistricting plans. See ; District 18 in its present form emerged from the General Assembly's third redistricting attempt, in By that time the African-American voting-age population had fallen below 50 percent in the district as then drawn, and the General Assembly no longer could draw a geographically compact majority-minority district. Rather than draw District 18 to keep Pender County whole, however, the General Assembly drew it by splitting portions of Pender and New Hanover counties. District 18 has an African-American voting-age population of 39.36 percent. App. 139. Had it left Pender County whole, the General Assembly could have drawn District 18 with an African-American voting-age population of 35.33 percent. The General Assembly's reason for splitting Pender County was to give African-American voters the potential to join with majority voters to elect the minority group's candidate of its choice. Failure to do so, state officials now submit, would have diluted the minority group's voting strength in violation of 2. In May Pender County and the five members of its Board of Commissioners filed the instant suit in North Carolina state court against the Governor of North Carolina, the Director of the State Board of Elections, and other state officials. The plaintiffs alleged that the plan violated the Whole County Provision by splitting Pender County into two House districts. App. 5-14. The state-official defendants answered that dividing Pender County was required by 2. As the trial court recognized, the procedural posture of *40 this case differs from most 2 cases. Here the defendants raise 2 as a defense. As a result, the trial court stated, they are "in the unusual position" of bearing the burden of proving that a 2 violation would have occurred absent splitting Pender County to draw District 18. App. to Pet. for Cert. 90a. The trial court first considered whether the defendant state officials had established the three threshold requirements for 2 liability under namely, (1) that the minority group "is sufficiently large and geographically compact to constitute a majority in a single-member district," (2) that the minority group is "politically cohesive," and (3) "that the white majority votes sufficiently as a bloc to enable it usually to defeat the minority's preferred " As to the first requirement, the trial court concluded that, although African-Americans were not a majority of the voting-age population in District 18, the district was a "de facto" majority-minority district because African-Americans could get enough support from crossover majority voters to elect the African-Americans' preferred The court ruled that African-Americans in District 18 were politically cohesive, thus satisfying the second requirement. And later, the plaintiffs stipulated that the third requirement was met. App. to Pet. for Cert. at 102a-103a, 130a. The court then determined, based on the totality of the circumstances, that 2 required the General Assembly to split Pender County. The court sustained the lines for District 18 on that rationale. at 116a-118a. Three of the Pender County Commissioners appealed the trial court's ruling that the defendants had established the first requirement. The Supreme Court of North Carolina reversed. It held that a "minority group must constitute a numerical majority of the voting population in the area under consideration before Section 2 requires the creation of a legislative district to prevent dilution of the votes of that minority group." On that premise the State Supreme Court determined District 18 was not mandated by 2 because African-Americans do not "constitute a numerical majority of citizens of voting age." It ordered the General Assembly to redraw District 18. We granted certiorari, 552 U.S. and now affirm. II Passage of the Voting Rights Act of 1965 was an important step in the struggle to end discriminatory treatment of minorities who seek to exercise one of the most fundamental rights of our citizens: the right to vote. Though the Act as a whole was the subject of debate and controversy, 2 prompted little criticism. The likely explanation for its general acceptance is that, as first enacted, 2 tracked, in part, the text of the Fifteenth Amendment. It prohibited practices "imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color." ; cf. U.S. Const., Amdt. 15 ("The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude"); see also S.Rep. No. 162, 89th Cong., 1st Sess., pt. 3, pp. 19-20 (1965). In this Court held that 2, as it *41 then read, "no more than elaborates upon. the Fifteenth Amendment" and was "intended to have an effect no different from that of the Fifteenth Amendment itself." In 1982, after the Mobile ruling, Congress amended 2, giving the statute its current form. The original Act had employed an intent requirement, prohibiting only those practices "imposed or applied. to deny or abridge" the right to vote. The amended version of 2 requires consideration of effects, as it prohibits practices "imposed or applied in a manner which results in a denial or abridgment" of the right to vote. 42 U.S.C. 1973(a) ( ed.). The 1982 amendments also added a subsection, 2(b), providing a test for determining whether a 2 violation has occurred. The relevant text of the statute now states: "(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color [or membership in a language minority group], as provided in subsection (b) of this section. "(b) A violation of subsection (a) of this section is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." 42 U.S.C. 1973. This Court first construed the amended version of 2 in In the plaintiffs were African-American residents of North Carolina who alleged that multimember districts diluted minority voting strength by submerging black voters into the white majority, denying them an opportunity to elect a candidate of their choice. The Court identified three "necessary preconditions" for a claim that the use of multimember districts constituted actionable vote dilution under 2:(1) The minority group must be "sufficiently large and geographically compact to constitute a majority in a single-member district," (2) the minority group must be "politically cohesive," and (3) the majority must vote "sufficiently as a bloc to enable it usually to defeat the minority's preferred " at The Court later held that the three requirements apply equally in 2 cases involving single-member districts, such as a claim alleging vote dilution because a geographically compact minority group has been split between two or more single-member districts. U.S. 25, In a 2 case, only when a party has established the requirements does a court proceed to analyze whether a violation has occurred based on the totality of the circumstances. III A This case turns on whether the first requirement can be satisfied when the minority group makes up less than 50 percent of the voting-age population in the potential election district. The parties *42 agree on all other parts of the analysis, so the dispositive question is: What size minority group is sufficient to satisfy the first requirement? At the outset the answer might not appear difficult to reach, for the Court said the minority group must "demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district." This would seem to end the matter, as it indicates the minority group must demonstrate it can constitute "a majority." But in and again in the Court reserved what it considered to be a separate questionwhether, "when a plaintiff alleges that a voting practice or procedure impairs a minority's ability to influence, rather than alter, election results, a showing of geographical compactness of a minority group not sufficiently large to constitute a majority will suffice." ; see also The Court has since applied the requirements in 2 cases but has declined to decide the minimum size minority group necessary to satisfy the first requirement. See U.S. 146, ; De (). We must consider the minimum-size question in this case. It is appropriate to review the terminology often used to describe various features of election districts in relation to the requirements of the Voting Rights Act. In majority-minority districts, a minority group composes a numerical, working majority of the voting-age population. Under present doctrine, 2 can require the creation of these districts. See, e.g., at ("Placing black voters in a district in which they constitute a sizeable and therefore `safe' majority ensures that they are able to elect their candidate of choice"); but see At the other end of the spectrum are influence districts, in which a minority group can influence the outcome of an election even if its preferred candidate cannot be elected. This Court has held that 2 does not require the creation of influence districts. The present case involves an intermediate type of districta so-called crossover district. Like an influence district, a crossover district is one in which minority voters make up less than a majority of the voting-age population. But in a crossover district, the minority population, at least potentially, is large enough to elect the candidate of its choice with help from voters who are members of the majority and who cross over to support the minority's preferred This Court has referred sometimes to crossover districts as "coalitional" districts, in recognition of the necessary coalition between minority and crossover majority voters. See ; see also Pildes, Is Voting Rights Law Now at War with Itself? Social Science and Voting Rights in the s, 80 N.C.L.Rev. 1517, 1539 (hereinafter Pildes). But that term risks confusion with coalition-district claims in which two minority groups form a coalition to elect the candidate of the coalition's choice. See, e.g., We do not address *43 that type of coalition district here. The petitioners in the present case (the state officials who were the defendants in the trial court) argue that 2 requires a crossover district, in which minority voters might be able to persuade some members of the majority to cross over and join with them. Petitioners argue that although crossover districts do not include a numerical majority of minority voters, they still satisfy the first requirement because they are "effective minority districts." Under petitioners' theory keeping Pender County whole would have violated 2 by cracking the potential crossover district that they drew as District 18. See n. 11, (vote dilution "may be caused by the dispersal of blacks into districts in which they constitute an ineffective minority of voters"). So, petitioners contend, 2 required them to override state law and split Pender County, drawing District 18 with an African-American voting-age population of 39.36 percent rather than keeping Pender County whole and leaving District 18 with an African-American voting-age population of 35.33 percent. We reject that claim. First, we conclude, the petitioners' theory is contrary to the mandate of 2. The statute requires a showing that minorities "have less opportunity than other members of the electorate to elect representatives of their choice." 42 U.S.C. 1973(b) ( ed.). But because they form only 39 percent of the voting-age population in District 18, African-Americans standing alone have no better or worse opportunity to elect a candidate than does any other group of voters with the same relative voting strength. That is, African-Americans in District 18 have the opportunity to join other votersincluding other racial minorities, or whites, or bothto reach a majority and elect their preferred They cannot, however, elect that candidate based on their own votes and without assistance from others. Recognizing a 2 claim in this circumstance would grant minority voters "a right to preserve their strength for the purposes of forging an advantageous political alliance." ; see also at (minorities in crossover districts "could not dictate electoral outcomes independently"). Nothing in 2 grants special protection to a minority group's right to form political coalitions. "[M]inority voters are not immune from the obligation to pull, haul, and trade to find common political ground." De Although the Court has reserved the question we confront today and has cautioned that the requirements "cannot be applied mechanically," the reasoning of our cases does not support petitioners' Section 2 does not impose on those who draw election districts a duty to give minority voters the most potential, or the best potential, to elect a candidate by attracting crossover voters. In setting out the first requirement for 2 claims, the Court explained that "[u]nless minority voters possess the potential to elect representatives in the absence of the challenged structure or practice, they cannot claim to have been injured by that structure or practice." n. 17, The Court stated that the first requirement is "needed to establish that the minority has the potential to elect a representative of its own choice in some single-member district." U.S., at 40, Without such a showing, "there neither has been a wrong nor can be a remedy." *44 There is a difference between a racial minority group's "own choice" and the choice made by a coalition. In the Court stated that the first requirement "would have to be modified or eliminated" to allow cross-over-district U.S., Only once, in dicta, has this Court framed the first requirement as anything other than a majority-minority rule. See De (requiring "a sufficiently large minority population to elect candidates of its choice"). And in the same case, the Court rejected the proposition, inherent in petitioners' claim here, that 2 entitles minority groups to the maximum possible voting strength: "[R]eading 2 to define dilution as any failure to maximize tends to obscure the very object of the statute and to run counter to its textually stated purpose. One may suspect vote dilution from political famine, but one is not entitled to suspect (much less infer) dilution from mere failure to guarantee a political feast." Allowing crossover-district claims would require us to revise and reformulate the threshold inquiry that has been the baseline of our 2 jurisprudence. Mandatory recognition of claims in which success for a minority depends upon crossover majority voters would create serious tension with the third requirement that the majority votes as a bloc to defeat minority-preferred candidates. It is difficult to see how the majority-bloc-voting requirement could be met in a district where, by definition, white voters join in sufficient numbers with minority voters to elect the minority's preferred (We are skeptical that the bloc-voting test could be satisfied here, for example, where minority voters in District 18 cannot elect their candidate of choice without support from almost 20 percent of white voters. We do not confront that issue, however, because for some reason respondents conceded the third requirement in state court.) As the Court explained, "in the absence of significant white bloc voting it cannot be said that the ability of minority voters to elect their chosen representatives is inferior to that of white voters." n. 15, Were the Court to adopt petitioners' theory and dispense with the majority-minority requirement, the ruling would call in question the framework the Court has applied under 2. See n. 8, (SOUTER, J., concurring in part and dissenting in part) ("All aspects of our established analysis for majority-minority districts in and its progeny may have to be rethought in analyzing ostensible coalition districts"); cf. (per curiam) (allowing influence-district claim to survive motion to dismiss but noting "there is tension in this case for plaintiffs in any effort to satisfy both the first and third prong of "). We find support for the majority-minority requirement in the need for workable standards and sound judicial and legislative administration. The rule draws clear lines for courts and legislatures alike. The same cannot be said of a less exacting standard that would mandate crossover districts under 2. Determining whether a 2 claim would liei.e., determining whether potential districts could function as crossover districtswould place courts in the untenable position of predicting many political variables and tying them to race-based assumptions. The judiciary would be directed to make predictions or adopt premises that even experienced polling *45 analysts and political experts could not assess with certainty, particularly over the long term. For example, courts would be required to pursue these inquiries: What percentage of white voters supported minority-preferred candidates in the past? How reliable would the crossover votes be in future elections? What types of candidates have white and minority voters supported together in the past and will those trends continue? Were past crossover votes based on incumbency and did that depend on race? What are the historical turnout rates among white and minority voters and will they stay the same? Those questions are speculative, and the answers (if they could be supposed) would prove elusive. A requirement to draw election districts on answers to these and like inquiries ought not to be inferred from the text or purpose of 2. Though courts are capable of making refined and exacting factual inquiries, they "are inherently ill-equipped" to "make decisions based on highly political judgments" of the sort that crossover-district claims would require. 5 U.S., at 894, There is an underlying principle of fundamental importance: We must be most cautious before interpreting a statute to require courts to make inquiries based on racial classifications and race-based predictions. The statutory mandate petitioners urge us to find in 2 raises serious constitutional questions. See infra, at 46-48. Heightening these concerns even further is the fact that 2 applies nationwide to every jurisdiction that must draw lines for election districts required by state or local law. Crossover-district claims would require courts to make predictive political judgments not only about familiar, two-party contests in large districts but also about regional and local jurisdictions that often feature more than two parties or candidates. Under petitioners' view courts would face the difficult task of discerning crossover patterns in nonpartisan contests for a city commission, a school board, or a local water authority. The political data necessary to make such determinations are nonexistent for elections in most of those jurisdictions. And predictions would be speculative at best given that, especially in the context of local elections, voters' personal affiliations with candidates and views on particular issues can play a large role. Unlike any of the standards proposed to allow crossover-district claims, the majority-minority rule relies on an objective, numerical test: Do minorities make up more than 50 percent of the voting-age population in the relevant geographic area? That rule provides straightforward guidance to courts and to those officials charged with drawing district lines to comply with 2. See (opinion of SOUTER, J.) (recognizing need for "clear-edged rule"). Where an election district could be drawn in which minority voters form a majority but such a district is not drawn, or where a majority-minority district is cracked by assigning some voters elsewhere, thenassuming the other factors are also satisfieddenial of the opportunity to elect a candidate of choice is a present and discernible wrong that is not subject to the high degree of speculation and prediction attendant upon the analysis of crossover Not an arbitrary invention, the majority-minority rule has its foundation in principles of democratic governance. The special significance, in the democratic process, of a majority means it is a special wrong when a minority group has 50 percent or more of the voting population and could constitute a compact voting majority but, despite racially polarized bloc voting, that group is not put into a district. *46 Given the text of 2, our cases interpreting that provision, and the many difficulties in assessing 2 claims without the restraint and guidance provided by the majority-minority rule, no federal court of appeals has held that 2 requires creation of coalition districts. Instead, all to consider the question have interpreted the first factor to require a majority-minority standard. See -430 cert. denied, 5 S. Ct. 1725, ; cert. denied, 0 S. Ct. 931, ; cert. denied, ; 1311-13 cert. denied, 520 U.S. 29, ; overruled on other grounds, ; cert. denied, Cf. We decline to depart from the uniform interpretation of 2 that has guided federal courts and state and local officials for more than 20 years. To be sure, the requirements "cannot be applied mechanically and without regard to the nature of the claim." U.S., It remains the rule, however, that a party asserting 2 liability must show by a preponderance of the evidence that the minority population in the potential election district is greater than 50 percent. No one contends that the African-American voting-age population in District 18 exceeds that thresh-old. Nor does this case involve allegations of intentional and wrongful conduct. We therefore need not consider whether intentional discrimination affects the analysis. Cf. Brief for United States as Amicus Curiae 14 (evidence of discriminatory intent "tends to suggest that the jurisdiction is not providing an equal opportunity to minority voters to elect the representative of their choice, and it is therefore unnecessary to consider the majority-minority requirement before proceeding to the ultimate totality-of-the-circumstances analysis"); see also Our holding does not apply to cases in which there is intentional discrimination against a racial minority. B In arguing for a less restrictive interpretation of the first requirement petitioners point to the text of 2 and its guarantee that political processes be "equally open to participation" to protect minority voters' "opportunity to elect representatives of their choice." 42 U.S.C. 1973(b) ( ed.). An "opportunity," petitioners argue, occurs in crossover districts as well as majority-minority districts; and these extended opportunities, they say, require 2 protection. But petitioners put emphasis on the word "opportunity" at the expense of the word "equally." The statute does not protect any possible opportunity or mechanism through which minority voters could work with other constituencies to elect their candidate of choice. Section 2 does not guarantee minority voters an electoral advantage. Minority groups in crossover districts cannot form a voting majority without crossover voters. In those districts minority voters have the same opportunity to elect their candidate as any *47 other political group with the same relative voting strength. The majority-minority rule, furthermore, is not at odds with 2's totality-of-the-circumstances test. The Court in De confirmed "the error of treating the three conditions as exhausting the enquiry required by 2." 5 U.S., at Instead the requirements are preconditions, consistent with the text and purpose of 2, to help courts determine which claims could meet the totality-of-the-circumstances standard for a 2 violation. See U.S., at 40, (describing the " threshold factors"). To the extent there is any doubt whether 2 calls for the majority-minority rule, we resolve that doubt by avoiding serious constitutional concerns under the Equal Protection Clause. See 5 S. Ct. 716, Of course, the "moral imperative of racial neutrality is the driving force of the Equal Protection Clause," and racial classifications are permitted only "as a last resort." "Racial classifications with respect to voting carry particular dangers. Racial gerrymandering, even for remedial purposes, may balkanize us into competing racial factions; it threatens to carry us further from the goal of a political system in which race no longer mattersa goal that the Fourteenth and Fifteenth Amendments embody, and to which the Nation continues to aspire." 5 L. Ed. 2d 511 If 2 were interpreted to require crossover districts throughout the Nation, "it would unnecessarily infuse race into virtually every redistricting, raising serious constitutional questions." ; see also (KENNEDY, J., concurring). That interpretation would result in a substantial increase in the number of mandatory districts drawn with race as "the predominant factor motivating the legislature's decision." On petitioners' view of the case courts and legislatures would need to scrutinize every factor that enters into districting to gauge its effect on crossover voting. Injecting this racial measure into the nationwide districting process would be of particular concern with respect to consideration of party registration or party influence. The easiest and most likely alliance for a group of minority voters is one with a political party, and some have suggested using minority voters' strength within a particular party as the proper yardstick under the first requirement. See, e.g., -486, (opinion of SOUTER, J.) (requiring only "that minority voters constitute a majority of those voting in the primary of. the party tending to win in the general election"). That approach would replace an objective, administrable rule with a difficult "judicial inquiry into party rules and local politics" to determine whether a minority group truly "controls" the dominant party's primary process. McLoughlin, in Limbo: Coalitional Districts, Party Primaries and Manageable Vote Dilution Claims, 80 N.Y.U.L.Rev. 3, 349 More troubling still is the inquiry's *48 fusion of race and party affiliation as a determinant when partisan considerations themselves may be suspect in the drawing of district lines. See 4 S. Ct. 1769, ; 4 S. Ct. 1769 (KENNEDY, J., concurring in judgment); see also Pildes 1565 (crossover-district requirement would essentially result in political party "entitlement to a certain number of seats"). Disregarding the majority-minority rule and relying on a combination of race and party to presume an effective majority would involve the law and courts in a perilous enterprise. It would rest on judicial predictions, as a matter of law, that race and party would hold together as an effective majority over timeat least for the decennial apportionment cycles and likely beyond. And thus would the relationship between race and party further distort and frustrate the search for neutral factors and principled rationales for districting. Petitioners' approach would reverse the canon of avoidance. It invites the divisive constitutional questions that are both unnecessary and contrary to the purposes of our precedents under the Voting Rights Act. Given the consequences of extending racial considerations even further into the districting process, we must not interpret 2 to require crossover districts. C Our holding that 2 does not require crossover districts does not consider the permissibility of such districts as a matter of legislative choice or discretion. Assuming a majority-minority district with a substantial minority population, a legislative determination, based on proper factors, to create two crossover districts may serve to diminish the significance and influence of race by encouraging minority and majority voters to work together toward a common goal. The option to draw such districts gives legislatures a choice that can lead to less racial isolation, not more. And as the Court has noted in the context of 5 of the Voting Rights Act, "various studies have suggested that the most effective way to maximize minority voting strength may be to create more influence or [crossover] districts." Much like 5, 2 allows States to choose their own method of complying with the Voting Rights Act, and we have said that may include drawing crossover districts. See at 480-, When we address the mandate of 2, however, we must note it is not concerned with maximizing minority voting strength, De 5 U.S., at 1022, ; and, as a statutory matter, 2 does not mandate creating or preserving crossover districts. Our holding also should not be interpreted to entrench majority-minority districts by statutory command, for that, too, could pose constitutional concerns. See States that wish to draw crossover districts are free to do so where no other prohibition exists. Majority-minority districts are only required if all three factors are met and if 2 applies based on a totality of the circumstances. In areas with substantial crossover voting it is unlikely that the plaintiffs would be able to establish the third preconditionbloc voting by majority voters. See at 44. In those areas majority-minority districts would not be required in the first place; and in the exercise of lawful discretion States could draw crossover districts as they deemed appropriate. See Pildes 1567 ("Districts could still be designed in such places that encouraged coalitions across racial lines, *49 but these districts would result from legislative choice, not obligation"). States canand in proper cases shoulddefend against alleged 2 violations by pointing to crossover voting patterns and to effective crossover districts. Those can be evidence, for example, of diminished bloc voting under the third factor or of equal political opportunity under the 2 totality-of-the-circumstances analysis. And if there were a showing that a State intentionally drew district lines in order to destroy otherwise effective crossover districts, that would raise serious questions under both the Fourteenth and Fifteenth Amendments. See v. Bossier School Bd., ; Brief for United States as Amicus Curiae 13-14. There is no evidence of discriminatory intent in this case, however. Our holding recognizes only that there is no support for the claim that 2 can require the creation of crossover districts in the first instance. Petitioners claim the majority-minority rule is inconsistent with 5, but we rejected a similar argument in The inquiries under 2 and 5 are different. Section 2 concerns minority groups' opportunity "to elect representatives of their choice," 42 U.S.C. 1973(b) ( ed.), while the more stringent 5 asks whether a change has the purpose or effect of "denying or abridging the right to vote," 1973c. See ; Bossier In we held that although the presence of influence districts is relevant for the 5 retrogression analysis, "the lack of such districts cannot establish a 2 violation." ; see also -, The same analysis applies for crossover districts: Section 5 "leaves room" for States to employ crossover districts, at but 2 does not require them. IV Some commentators suggest that racially polarized voting is waningas evidenced by, for example, the election of minority candidates where a majority of voters are white. See Note, The Future of Majority-Minority Districts in Light of Declining Racially Polarized Voting, 116 Harv. L.Rev. 2208, 2209 ; see also ; Pildes 1529-1539; Bullock & Dunn, The Demise of Racial Districting and the Future of Black Representation, 48 Emory L.J. 09 Still, racial discrimination and racially polarized voting are not ancient history. Much remains to be done to ensure that citizens of all races have equal opportunity to share and participate in our democratic processes and traditions; and 2 must be interpreted to ensure that continued progress. It would be an irony, however, if 2 were interpreted to entrench racial differences by expanding a "statute meant to hasten the waning of racism in American politics." De Crossover districts are, by definition, the result of white voters joining forces with minority voters to elect their preferred The Voting Rights Act was passed to foster this cooperation. We decline now to expand the reaches of 2 to require, by force of law, the voluntary cooperation our society has achieved. Only when a geographically compact group of minority voters could form a majority in a single-member district has the first requirement been met. *50 The judgment of the Supreme Court of North Carolina is affirmed. It is so ordered. Justice THOMAS, with whom Justice SCALIA joins, concurring in the judgment. |
Justice White | majority | false | Parker v. North Carolina | 1970-05-04T00:00:00 | null | https://www.courtlistener.com/opinion/108139/parker-v-north-carolina/ | https://www.courtlistener.com/api/rest/v3/clusters/108139/ | 1,970 | 1969-091 | 1 | 5 | 3 | At about 11 p. m. on July 16, 1964, petitioner was arrested after entering the yard of a home where a burglary and rape had been committed four days earlier. Petitioner, a Negro boy then 15 years old, was taken to the police station and was questioned for one or two hours. After the questioning, petitioner was placed alone in a dimly lit cell for the remainder of the night. Although petitioner refused to give even his name during the questioning, the police eventually determined his identity and notified petitioner's mother the next day between 3:30 and 4:30 a. m. That morning, petitioner was given drinking water and was then questioned by the police; petitioner almost immediately confessed to the burglary and rape committed several days earlier at the house where he had been arrested. Shortly thereafter, *792 an attorney retained by petitioner's mother came to the police station and talked with petitioner. Petitioner told the attorney that the confession had not been prompted by threats or promises and that he had not been frightened when he made the statement to the police.
Petitioner was indicted for first-degree burglary, an offense punishable by death under North Carolina law.[1] Petitioner's retained attorney discussed with petitioner and his mother the nature and seriousness of the charge. In due course, petitioner and his mother signed written statements authorizing the entry of a plea of guilty. Both petitioner and his mother were aware at the time they signed the authorization for the guilty plea that, if the plea was accepted, petitioner would receive the mandatory sentence of life imprisonment.[2] The prosecutor *793 and the trial judge accepted the plea. In accepting the plea on August 18, 1964, the trial court asked the petitioner if the plea was made in response to any promise or threat and petitioner answered in the negative; petitioner affirmed that he tendered the plea "freely without any fear or compulsion."[3] Upon acceptance of the plea, petitioner was sentenced to life imprisonment.
In 1967, petitioner, assisted by counsel, filed a petition under the North Carolina Post-Conviction Hearing Act[4] to obtain relief from his conviction. In his petition, Parker urged that his plea of guilty was the product of a coerced confession and that the indictment to which *794 he pleaded was invalid because members of his race had been systematically excluded from the grand jury which returned the indictment. After a hearing, the Superior Court of Halifax County found that there was no deliberate exclusion of Negroes from the grand jury that indicted petitioner and that petitioner had freely admitted his guilt and had pleaded guilty "freely, voluntarily, without threat, coercion or duress . . . ." The Court of Appeals of North Carolina, the highest state court in which petitioner could seek review,[5] affirmed the conviction after reviewing not only the claims presented to the lower court but also the additional assertion by petitioner that his guilty plea was involuntary because North Carolina statutes at that time allowed a defendant to escape the possibility of a death penalty on a capital charge by pleading guilty to that charge. 2 N. C. App. 27, 162 S.E.2d 526 (1968). We granted certiorari, 395 U.S. 974 (1969), to consider petitioner's federal constitutional claims. For the reasons presented below, we affirm.
I
Parker would have us hold his guilty plea involuntary and therefore invalid for two reasons: first, because it was induced by a North Carolina statute providing a maximum penalty in the event of a plea of guilty lower than the penalty authorized after a verdict of guilty by a jury; and, second, because the plea was the product of a coerced confession given to the police shortly after petitioner was arrested. Neither reason is sufficient to warrant setting aside Parker's plea.
It may be that under United States v. Jackson, 390 U.S. 570 (1968), it was unconstitutional to impose the death penalty under the statutory framework which existed *795 in North Carolina at the time of Parker's plea.[6] Even so, we determined in Brady v. United States, ante, p. 742, that an otherwise valid plea is not involuntary because induced by the defendant's desire to limit the possible maximum penalty to less than that authorized if there is a jury trial. In this respect we see nothing to distinguish Parker's case from Brady's.
Nor can we accept the claim that the plea was infirm because it was the product of a coerced confession. According to Parker's testimony at the post-conviction hearing, he was denied food and water, promised unspecified help if he confessed, and denied counsel's advice when he requested it. In the record, however, was an abundance of evidence contradicting Parker's claim of coercion: Parker's statements to his attorney soon after his interrogation that there had been no threats or promises and that he had not been afraid, his similar declarations in his sworn statement authorizing his plea,[7] his answers to the trial judge at the time the plea was accepted,[8] and his failure to complain of any mistreatment by the police until many months after he began serving his sentence. The North Carolina courts accordingly refused to credit his testimony and concluded that his confession was a free and voluntary act.
*796 We would in any event be reluctant to question the judgment of the state courts in this respect; but we need not evaluate the voluntariness of petitioner's confession since even if the confession should have been found involuntary, we cannot believe that the alleged conduct of the police during the interrogation period was of such a nature or had such enduring effect as to make involuntary a plea of guilty entered over a month later. Parker soon had food and water, the lack of counsel was immediately remedied, and there was ample opportunity to consider the significance of the alleged promises. After the allegedly coercive interrogation, there were no threats, misrepresentations, promises, or other improper acts by the State. Parker had the advice of retained counsel and of his family for the month before he pleaded. The connection, if any, between Parker's confession and his plea of guilty had "become so attenuated as to dissipate the taint." Nardone v. United States, 308 U.S. 338, 341 (1939); Wong Sun v. United States, 371 U.S. 471, 491 (1963). As far as this record reveals, the guilty plea was Parker's free and voluntary act, the product of his own choice, just as he affirmed it was when the plea was entered in open court.
II
On the assumption that Parker's confession was inadmissible, there remains the question whether his plea, even if voluntary, was unintelligently made because his counsel mistakenly thought his confession was admissible. As we understand it, Parker's position necessarily implies that his decision to plead rested on the strength of the case against him: absent the confession, his chances of acquittal were good and he would have chosen to stand trial; but given the confession, the evidence was too strong and it was to his advantage to plead guilty and *797 limit the possible penalty to life imprisonment.[9] On this assumption, had Parker and his counsel thought the confession inadmissible, there would have been a plea of not guilty and a trial to a jury. But counsel apparently deemed the confession admissible and his advice to plead guilty was followed by his client. Parker now considers his confession involuntary and inadmissible. The import of this claim is that he suffered from bad advice and that had he been correctly counseled he would have gone to trial rather than enter a guilty plea. He suggests that he is entitled to plead again, a suggestion that we reject.
For the reasons set out in McMann v. Richardson, ante, p. 759, even if Parker's counsel was wrong in his assessment of Parker's confession, it does not follow that his error was sufficient to render the plea unintelligent and entitle Parker to disavow his admission in open court that he committed the offense with which he was charged.[10] Based on the facts of record relating to Parker's confession and guilty plea, which we have previously detailed, we think the advice he received was well within the range of competence required of attorneys *798 representing defendants in criminal cases. Parker's plea of guilty was an intelligent plea not open to attack on the grounds that counsel misjudged the admissibility of Parker's confession.
III
We also have before us the question whether the indictment to which Parker pleaded is invalid because members of his race were allegedly systematically excluded from the grand jury that returned the indictment. The North Carolina Court of Appeals refused to consider the claim since under North Carolina law an objection to the composition of the grand jury must be raised by motion to quash the indictment prior to the entry of the guilty plea.[11] Because Parker had failed to raise his objection in timely fashion, relief was unavailable. This state rule of practice would constitute an adequate state ground precluding our reaching the grand jury issue if this case were here on direct review. See Fay v. Noia, 372 U.S. 391, 428-429 (1963). We are under similar constraint when asked to review a state court decision holding that the same rule of practice requires denial of collateral relief. Ibid. Whether the question of racial exclusion in the selection of the grand jury is open in a federal habeas corpus action we need not decide. Compare United States ex rel. Goldsby v. *799 Harpole, 263 F.2d 71 (C. A. 5th Cir.), cert. denied, 361 U.S. 838 and 850 (1959), with Labat v. Bennett, 365 F.2d 698 (C. A. 5th Cir. 1966), cert. denied, 386 U.S. 991 (1967). See also McNeil v. North Carolina, 368 F.2d 313 (C. A. 4th Cir. 1966).
The North Carolina Court of Appeals correctly concluded that petitioner's plea of guilty was intelligent and voluntary, and there was an adequate basis in North Carolina procedural law for the North Carolina Court of Appeals' refusal to consider the claim of racial exclusion in the composition of the grand jury that indicted petitioner.
Affirmed.
MR. | At about 11 p. m. on July 16, 1964, petitioner was arrested after entering the yard of a home where a burglary and rape had been committed four days earlier. Petitioner, a Negro boy then 15 years old, was taken to the police station and was questioned for one or two hours. After the questioning, petitioner was placed alone in a dimly lit cell for the remainder of the night. Although petitioner refused to give even his name during the questioning, the police eventually determined his identity and notified petitioner's mother the next day between 3:30 and 4:30 a. m. That morning, petitioner was given drinking water and was then questioned by the police; petitioner almost immediately confessed to the burglary and rape committed several days earlier at the house where he had been arrested. Shortly thereafter, *792 an attorney retained by petitioner's mother came to the police station and talked with petitioner. Petitioner told the attorney that the confession had not been prompted by threats or promises and that he had not been frightened when he made the statement to the police. Petitioner was indicted for first-degree burglary, an offense punishable by death under North Carolina law.[1] Petitioner's retained attorney discussed with petitioner and his mother the nature and seriousness of the charge. In due course, petitioner and his mother signed written statements authorizing the entry of a plea of guilty. Both petitioner and his mother were aware at the time they signed the authorization for the guilty plea that, if the plea was accepted, petitioner would receive the mandatory sentence of life imprisonment.[2] The prosecutor *793 and the trial judge accepted the plea. In accepting the plea on August 18, 1964, the trial court asked the petitioner if the plea was made in response to any promise or threat and petitioner answered in the negative; petitioner affirmed that he tendered the plea "freely without any fear or compulsion."[3] Upon acceptance of the plea, petitioner was sentenced to life imprisonment. In 1967, petitioner, assisted by counsel, filed a petition under the North Carolina Post-Conviction Hearing Act[4] to obtain relief from his conviction. In his petition, Parker urged that his plea of guilty was the product of a coerced confession and that the indictment to which *794 he pleaded was invalid because members of his race had been systematically excluded from the grand jury which returned the indictment. After a hearing, the Superior Court of Halifax County found that there was no deliberate exclusion of Negroes from the grand jury that indicted petitioner and that petitioner had freely admitted his guilt and had pleaded guilty "freely, voluntarily, without threat, coercion or duress" The Court of Appeals of North Carolina, the highest state court in which petitioner could seek review,[5] affirmed the conviction after reviewing not only the claims presented to the lower court but also the additional assertion by petitioner that his guilty plea was involuntary because North Carolina statutes at that time allowed a defendant to escape the possibility of a death penalty on a capital charge by pleading guilty to that charge. 2 N. C. App. 27, We granted certiorari, to consider petitioner's federal constitutional claims. For the reasons presented below, we affirm. I Parker would have us hold his guilty plea involuntary and therefore invalid for two reasons: first, because it was induced by a North Carolina statute providing a maximum penalty in the event of a plea of guilty lower than the penalty authorized after a verdict of guilty by a jury; and, second, because the plea was the product of a coerced confession given to the police shortly after petitioner was arrested. Neither reason is sufficient to warrant setting aside Parker's plea. It may be that under United it was unconstitutional to impose the death penalty under the statutory framework which existed *795 in North Carolina at the time of Parker's plea.[6] Even so, we determined in Brady v. United States, ante, p. 742, that an otherwise valid plea is not involuntary because induced by the defendant's desire to limit the possible maximum penalty to less than that authorized if there is a jury trial. In this respect we see nothing to distinguish Parker's case from Brady's. Nor can we accept the claim that the plea was infirm because it was the product of a coerced confession. According to Parker's testimony at the post-conviction hearing, he was denied food and water, promised unspecified help if he confessed, and denied counsel's advice when he requested it. In the record, however, was an abundance of evidence contradicting Parker's claim of coercion: Parker's statements to his attorney soon after his interrogation that there had been no threats or promises and that he had not been afraid, his similar declarations in his sworn statement authorizing his plea,[7] his answers to the trial judge at the time the plea was accepted,[8] and his failure to complain of any mistreatment by the police until many months after he began serving his sentence. The North Carolina courts accordingly refused to credit his testimony and concluded that his confession was a free and voluntary act. *796 We would in any event be reluctant to question the judgment of the state courts in this respect; but we need not evaluate the voluntariness of petitioner's confession since even if the confession should have been found involuntary, we cannot believe that the alleged conduct of the police during the interrogation period was of such a nature or had such enduring effect as to make involuntary a plea of guilty entered over a month later. Parker soon had food and water, the lack of counsel was immediately remedied, and there was ample opportunity to consider the significance of the alleged promises. After the allegedly coercive interrogation, there were no threats, misrepresentations, promises, or other improper acts by the State. Parker had the advice of retained counsel and of his family for the month before he pleaded. The connection, if any, between Parker's confession and his plea of guilty had "become so attenuated as to dissipate the taint." ; Wong As far as this record reveals, the guilty plea was Parker's free and voluntary act, the product of his own choice, just as he affirmed it was when the plea was entered in open court. II On the assumption that Parker's confession was inadmissible, there remains the question whether his plea, even if voluntary, was unintelligently made because his counsel mistakenly thought his confession was admissible. As we understand it, Parker's position necessarily implies that his decision to plead rested on the strength of the case against him: absent the confession, his chances of acquittal were good and he would have chosen to stand trial; but given the confession, the evidence was too strong and it was to his advantage to plead guilty and *797 limit the possible penalty to life imprisonment.[9] On this assumption, had Parker and his counsel thought the confession inadmissible, there would have been a plea of not guilty and a trial to a jury. But counsel apparently deemed the confession admissible and his advice to plead guilty was followed by his client. Parker now considers his confession involuntary and inadmissible. The import of this claim is that he suffered from bad advice and that had he been correctly counseled he would have gone to trial rather than enter a guilty plea. He suggests that he is entitled to plead again, a suggestion that we reject. For the reasons set out in McMann v. Richardson, ante, p. 759, even if Parker's counsel was wrong in his assessment of Parker's confession, it does not follow that his error was sufficient to render the plea unintelligent and entitle Parker to disavow his admission in open court that he committed the offense with which he was charged.[10] Based on the facts of record relating to Parker's confession and guilty plea, which we have previously detailed, we think the advice he received was well within the range of competence required of attorneys *798 representing defendants in criminal cases. Parker's plea of guilty was an intelligent plea not open to attack on the grounds that counsel misjudged the admissibility of Parker's confession. III We also have before us the question whether the indictment to which Parker pleaded is invalid because members of his race were allegedly systematically excluded from the grand jury that returned the indictment. The North Carolina Court of Appeals refused to consider the claim since under North Carolina law an objection to the composition of the grand jury must be raised by motion to quash the indictment prior to the entry of the guilty plea.[11] Because Parker had failed to raise his objection in timely fashion, relief was unavailable. This state rule of practice would constitute an adequate state ground precluding our reaching the grand jury issue if this case were here on direct review. See We are under similar constraint when asked to review a state court decision holding that the same rule of practice requires denial of collateral relief. Whether the question of racial exclusion in the selection of the grand jury is open in a federal habeas corpus action we need not decide. Compare United States ex rel. (C. A. 5th Cir.), cert. denied, with cert. denied, See also The North Carolina Court of Appeals correctly concluded that petitioner's plea of guilty was intelligent and voluntary, and there was an adequate basis in North Carolina procedural law for the North Carolina Court of Appeals' refusal to consider the claim of racial exclusion in the composition of the grand jury that indicted petitioner. Affirmed. MR. |
Justice Thomas | second_dissenting | false | Rodriguez v. United States | 2015-04-21T00:00:00 | null | https://www.courtlistener.com/opinion/2795278/rodriguez-v-united-states/ | https://www.courtlistener.com/api/rest/v3/clusters/2795278/ | 2,015 | 2014-041 | 2 | 6 | 3 | Ten years ago, we explained that “conducting a dog sniff
[does] not change the character of a traffic stop that is
lawful at its inception and otherwise executed in a reason-
able manner.” Illinois v. Caballes, 543 U.S. 405, 408
(2005). The only question here is whether an officer exe-
cuted a stop in a reasonable manner when he waited to
conduct a dog sniff until after he had given the driver a
written warning and a backup unit had arrived, bringing
the overall duration of the stop to 29 minutes. Because
the stop was reasonably executed, no Fourth Amendment
violation occurred. The Court’s holding to the contrary
cannot be reconciled with our decision in Caballes or a
number of common police practices. It was also unneces-
sary, as the officer possessed reasonable suspicion to
continue to hold the driver to conduct the dog sniff. I
respectfully dissent.
I
The Fourth Amendment protects “[t]he right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures.”
U. S. Const., Amdt. 4. As the text indicates, and as we
2 RODRIGUEZ v. UNITED STATES
THOMAS, J., dissenting
have repeatedly confirmed, “the ultimate touchstone of the
Fourth Amendment is ‘reasonableness.’ ” Brigham City v.
Stuart, 547 U.S. 398, 403 (2006). We have defined rea-
sonableness “in objective terms by examining the totality
of the circumstances,” Ohio v. Robinette, 519 U.S. 33, 39
(1996), and by considering “the traditional protections
against unreasonable searches and seizures afforded by
the common law at the time of the framing,” Atwater v.
Lago Vista, 532 U.S. 318, 326 (2001) (internal quotation
marks omitted). When traditional protections have not
provided a definitive answer, our precedents have “ana-
lyzed a search or seizure in light of traditional standards
of reasonableness by assessing, on the one hand, the de-
gree to which it intrudes upon an individual’s privacy and,
on the other, the degree to which it is needed for the pro-
motion of legitimate governmental interests.” Virginia v.
Moore, 553 U.S. 164, 171 (2008) (internal quotation
marks omitted).
Although a traffic stop “constitutes a ‘seizure’ of ‘per-
sons’ within the meaning of [the Fourth Amendment],”
such a seizure is constitutionally “reasonable where the
police have probable cause to believe that a traffic viola-
tion has occurred.” Whren v. United States, 517 U.S. 806,
809–810 (1996). But “a seizure that is lawful at its incep-
tion can violate the Fourth Amendment if its manner of
execution unreasonably infringes interests protected by
the Constitution.” Caballes, supra, at 407.
Because Rodriguez does not dispute that Officer Struble
had probable cause to stop him, the only question is
whether the stop was otherwise executed in a reasonable
manner. See Brief for Appellant in No. 13–1176 (CA8),
p. 4, n. 2. I easily conclude that it was. Approximately 29
minutes passed from the time Officer Struble stopped
Rodriguez until his narcotics-detection dog alerted to the
presence of drugs. That amount of time is hardly out of
the ordinary for a traffic stop by a single officer of a vehi-
Cite as: 575 U. S. ____ (2015) 3
THOMAS, J., dissenting
cle containing multiple occupants even when no dog sniff
is involved. See, e.g., United States v. Ellis, 497 F.3d 606
(CA6 2007) (22 minutes); United States v. Barragan, 379
F.3d 524 (CA8 2004) (approximately 30 minutes). During
that time, Officer Struble conducted the ordinary activities
of a traffic stop—he approached the vehicle, questioned
Rodriguez about the observed violation, asked Pollman
about their travel plans, ran serial warrant checks on
Rodriguez and Pollman, and issued a written warning to
Rodriguez. And when he decided to conduct a dog sniff, he
took the precaution of calling for backup out of concern for
his safety. See 741 F.3d 905, 907 (CA8 2014); see also
Pennsylvania v. Mimms, 434 U.S. 106, 110 (1977) (per
curiam) (officer safety is a “legitimate and weighty” con-
cern relevant to reasonableness).
As Caballes makes clear, the fact that Officer Struble
waited until after he gave Rodriguez the warning to con-
duct the dog sniff does not alter this analysis. Because
“the use of a well-trained narcotics-detection dog . . . gen-
erally does not implicate legitimate privacy interests,” 543
U.S., at 409, “conducting a dog sniff would not change the
character of a traffic stop that is lawful at its inception
and otherwise executed in a reasonable manner,” id., at
408. The stop here was “lawful at its inception and other-
wise executed in a reasonable manner.” Ibid. As in Ca-
balles, “conducting a dog sniff [did] not change the charac-
ter of [the] traffic stop,” ibid., and thus no Fourth
Amendment violation occurred.
II
Rather than adhere to the reasonableness requirement
that we have repeatedly characterized as the “touchstone
of the Fourth Amendment,” Brigham City, supra, at 403,
the majority constructed a test of its own that is incon-
sistent with our precedents.
4 RODRIGUEZ v. UNITED STATES
THOMAS, J., dissenting
A
The majority’s rule requires a traffic stop to “en[d] when
tasks tied to the traffic infraction are—or reasonably
should have been—completed.” Ante, at 5. “If an officer
can complete traffic-based inquiries expeditiously, then
that is the amount of time reasonably required to complete
the stop’s mission” and he may hold the individual no
longer. Ante, at 8 (internal quotation marks and altera-
tions omitted). The majority’s rule thus imposes a one-
way ratchet for constitutional protection linked to the
characteristics of the individual officer conducting the
stop: If a driver is stopped by a particularly efficient of-
ficer, then he will be entitled to be released from the traf-
fic stop after a shorter period of time than a driver stopped
by a less efficient officer. Similarly, if a driver is stopped
by an officer with access to technology that can shorten a
records check, then he will be entitled to be released from
the stop after a shorter period of time than an individual
stopped by an officer without access to such technology.
I “cannot accept that the search and seizure protections
of the Fourth Amendment are so variable and can be made
to turn upon such trivialities.” Whren, 517 U.S., at 815
(citations omitted). We have repeatedly explained that the
reasonableness inquiry must not hinge on the characteris-
tics of the individual officer conducting the seizure. We
have held, for example, that an officer’s state of mind
“does not invalidate [an] action taken as long as the cir-
cumstances, viewed objectively, justify that action.” Id., at
813 (internal quotation marks omitted). We have spurned
theories that would make the Fourth Amendment “change
with local law enforcement practices.” Moore, supra, at
172. And we have rejected a rule that would require the
offense establishing probable cause to be “closely related
to” the offense identified by the arresting officer, as such a
rule would make “the constitutionality of an arrest . . .
vary from place to place and from time to time, depending
Cite as: 575 U. S. ____ (2015) 5
THOMAS, J., dissenting
on whether the arresting officer states the reason for the
detention and, if so, whether he correctly identifies a
general class of offense for which probable cause exists.”
Devenpeck v. Alford, 543 U.S. 146, 154 (2004) (internal
quotation marks and citation omitted). In Devenpeck, a
unanimous Court explained: “An arrest made by a knowl-
edgeable, veteran officer would be valid, whereas an arrest
made by a rookie in precisely the same circumstances
would not. We see no reason to ascribe to the Fourth
Amendment such arbitrarily variable protection.” Ibid.
The majority’s logic would produce similarly arbitrary
results. Under its reasoning, a traffic stop made by a
rookie could be executed in a reasonable manner, whereas
the same traffic stop made by a knowledgeable, veteran
officer in precisely the same circumstances might not, if in
fact his knowledge and experience made him capable of
completing the stop faster. We have long rejected inter-
pretations of the Fourth Amendment that would produce
such haphazard results, and I see no reason to depart from
our consistent practice today.
B
As if that were not enough, the majority also limits the
duration of the stop to the time it takes the officer to
complete a narrow category of “traffic-based inquiries.”
Ante, at 8. According to the majority, these inquiries
include those that “serve the same objective as enforce-
ment of the traffic code: ensuring that vehicles on the road
are operated safely and responsibly.” Ante, at 6. Inquiries
directed to “detecting evidence of ordinary criminal
wrongdoing” are not traffic-related inquiries and thus
cannot count toward the overall duration of the stop. Ibid.
(internal quotation marks and alteration omitted).
The combination of that definition of traffic-related
inquiries with the majority’s officer-specific durational
limit produces a result demonstrably at odds with our
6 RODRIGUEZ v. UNITED STATES
THOMAS, J., dissenting
decision in Caballes. Caballes expressly anticipated that a
traffic stop could be reasonably prolonged for officers to
engage in a dog sniff. We explained that no Fourth
Amendment violation had occurred in Caballes, where the
“duration of the stop . . . was entirely justified by the
traffic offense and the ordinary inquiries incident to such
a stop,” but suggested a different result might attend a
case “involving a dog sniff that occurred during an unrea-
sonably prolonged traffic stop.” 543 U.S., at 407–408
(emphasis added). The dividing line was whether the
overall duration of the stop exceeded “the time reasonably
required to complete th[e] mission,” id., at 407, not, as the
majority suggests, whether the duration of the stop “in
fact” exceeded the time necessary to complete the traffic-
related inquiries, ante, at 8.
The majority’s approach draws an artificial line between
dog sniffs and other common police practices. The lower
courts have routinely confirmed that warrant checks are a
constitutionally permissible part of a traffic stop, see, e.g.,
United States v. Simmons, 172 F.3d 775, 778 (CA11
1999); United States v. Mendez, 118 F.3d 1426, 1429
(CA10 1997); United States v. Shabazz, 993 F.2d 431, 437
(CA5 1993), and the majority confirms that it finds no
fault in these measures, ante, at 6. Yet its reasoning
suggests the opposite. Such warrant checks look more like
they are directed to “detecting evidence of ordinary crimi-
nal wrongdoing” than to “ensuring that vehicles on the
road are operated safely and responsibly.” Ante, at 6
(internal quotation marks and alteration omitted). Per-
haps one could argue that the existence of an outstanding
warrant might make a driver less likely to operate his
vehicle safely and responsibly on the road, but the same
could be said about a driver in possession of contraband.
A driver confronted by the police in either case might try
to flee or become violent toward the officer. But under the
majority’s analysis, a dog sniff, which is directed at uncov-
Cite as: 575 U. S. ____ (2015) 7
THOMAS, J., dissenting
ering that problem, is not treated as a traffic-based in-
quiry. Warrant checks, arguably, should fare no better.
The majority suggests that a warrant check is an ordinary
inquiry incident to a traffic stop because it can be used “ ‘to
determine whether the apparent traffic violator is wanted
for one or more previous traffic offenses.’ ” Ante, at 6
(quoting 4 W. LaFave, Search and Seizure §9.3(c), p. 516
(5th ed. 2012)). But as the very treatise on which the
majority relies notes, such checks are a “manifest[ation of]
the ‘war on drugs’ motivation so often underlying [routine
traffic] stops,” and thus are very much like the dog sniff in
this case. Id., §9.3(c), at 507–508.
Investigative questioning rests on the same basis as the
dog sniff. “Asking questions is an essential part of police
investigations.” Hiibel v. Sixth Judicial Dist. Court of
Nev., Humboldt Cty., 542 U.S. 177, 185 (2004). And the
lower courts have routinely upheld such questioning dur-
ing routine traffic stops. See, e.g., United States v. Rivera,
570 F.3d 1009, 1013 (CA8 2009); United States v. Childs,
277 F.3d 947, 953–954 (CA7 2002). The majority’s rea-
soning appears to allow officers to engage in some ques-
tioning aimed at detecting evidence of ordinary criminal
wrongdoing. Ante, at 5. But it is hard to see how such
inquiries fall within the “seizure’s ‘mission’ [of ] ad-
dress[ing] the traffic violation that warranted the stop,” or
“attend[ing] to related safety concerns.” Ibid. Its reason-
ing appears to come down to the principle that dogs are
different.
C
On a more fundamental level, the majority’s inquiry
elides the distinction between traffic stops based on prob-
able cause and those based on reasonable suspicion.
Probable cause is the “traditional justification” for the
seizure of a person. Whren, 517 U.S., at 817 (emphasis
deleted); see also Dunaway v. New York, 442 U.S. 200,
8 RODRIGUEZ v. UNITED STATES
THOMAS, J., dissenting
207–208 (1979). This Court created an exception to that
rule in Terry v. Ohio, 392 U.S. 1 (1968), permitting “police
officers who suspect criminal activity to make limited
intrusions on an individual’s personal security based on
less than probable cause,” Michigan v. Summers, 452 U.S.
692, 698 (1981). Reasonable suspicion is the justification
for such seizures. Prado Navarette v. California, 572 U. S.
___, ___ (2014) (slip op., at 3).
Traffic stops can be initiated based on probable cause or
reasonable suspicion. Although the Court has commented
that a routine traffic stop is “more analogous to a so-called
‘Terry stop’ than to a formal arrest,” it has rejected the
notion “that a traffic stop supported by probable cause
may not exceed the bounds set by the Fourth Amendment
on the scope of a Terry stop.” Berkemer v. McCarty, 468
U.S. 420, 439, and n. 29 (1984) (citation omitted).
Although all traffic stops must be executed reasonably,
our precedents make clear that traffic stops justified by
reasonable suspicion are subject to additional limitations
that those justified by probable cause are not. A traffic
stop based on reasonable suspicion, like all Terry stops,
must be “justified at its inception” and “reasonably related
in scope to the circumstances which justified the interfer-
ence in the first place.” Hiibel, 542 U.S., at 185 (internal
quotation marks omitted). It also “cannot continue for an
excessive period of time or resemble a traditional arrest.”
Id., at 185–186 (citation omitted). By contrast, a stop
based on probable cause affords an officer considerably
more leeway. In such seizures, an officer may engage in a
warrantless arrest of the driver, Atwater, 532 U.S., at
354, a warrantless search incident to arrest of the driver,
Riley v. California, 573 U. S. ___, ___ (2014) (slip op., at 5),
and a warrantless search incident to arrest of the vehicle
if it is reasonable to believe evidence relevant to the crime
of arrest might be found there, Arizona v. Gant, 556 U.S.
332, 335 (2009).
Cite as: 575 U. S. ____ (2015) 9
THOMAS, J., dissenting
The majority casually tosses this distinction aside. It
asserts that the traffic stop in this case, which was undis-
putedly initiated on the basis of probable cause, can last
no longer than is in fact necessary to effectuate the mis-
sion of the stop. Ante, at 8. And, it assumes that the
mission of the stop was merely to write a traffic ticket,
rather than to consider making a custodial arrest. Ante,
at 5. In support of that durational requirement, it relies
primarily on cases involving Terry stops. See ante, at 5–7
(citing Arizona v. Johnson, 555 U.S. 323 (2009) (analyzing
“stop and frisk” of passenger in a vehicle temporarily
seized for a traffic violation); United States v. Sharpe, 470
U.S. 675 (1985) (analyzing seizure of individuals based on
suspicion of marijuana trafficking); Florida v. Royer, 460
U.S. 491 (1983) (plurality opinion) (analyzing seizure of
man walking through airport on suspicion of narcotics
activity)).
The only case involving a traffic stop based on probable
cause that the majority cites for its rule is Caballes. But,
that decision provides no support for today’s restructuring
of our Fourth Amendment jurisprudence. In Caballes, the
Court made clear that, in the context of a traffic stop
supported by probable cause, “a dog sniff would not change
the character of a traffic stop that is lawful at its inception
and otherwise executed in a reasonable manner.” 543
U.S., at 408. To be sure, the dissent in Caballes would
have “appl[ied] Terry’s reasonable-relation test . . . to
determine whether the canine sniff impermissibly ex-
panded the scope of the initially valid seizure of Caballes.”
Id., at 420 (GINSBURG, J., dissenting). But even it conceded
that the Caballes majority had “implicitly [rejected] the
application of Terry to a traffic stop converted, by calling
in a dog, to a drug search.” Id., at 421.
By strictly limiting the tasks that define the durational
scope of the traffic stop, the majority accomplishes today
what the Caballes dissent could not: strictly limiting the
10 RODRIGUEZ v. UNITED STATES
THOMAS, J., dissenting
scope of an officer’s activities during a traffic stop justified
by probable cause. In doing so, it renders the difference
between probable cause and reasonable suspicion virtually
meaningless in this context. That shift is supported nei-
ther by the Fourth Amendment nor by our precedents
interpreting it. And, it results in a constitutional frame-
work that lacks predictability. Had Officer Struble ar-
rested, handcuffed, and taken Rodriguez to the police
station for his traffic violation, he would have complied
with the Fourth Amendment. See Atwater, supra, at 354–
355. But because he made Rodriguez wait for seven or
eight extra minutes until a dog arrived, he evidently
committed a constitutional violation. Such a view of the
Fourth Amendment makes little sense.
III
Today’s revision of our Fourth Amendment jurispru-
dence was also entirely unnecessary. Rodriguez suffered
no Fourth Amendment violation here for an entirely inde-
pendent reason: Officer Struble had reasonable suspicion
to continue to hold him for investigative purposes. Our
precedents make clear that the Fourth Amendment per-
mits an officer to conduct an investigative traffic stop
when that officer has “a particularized and objective basis
for suspecting the particular person stopped of criminal
activity.” Prado Navarette, 572 U. S., at ___ (slip op., at 3)
(internal quotation marks omitted). Reasonable suspicion
is determined by looking at “the whole picture,” ibid.,
taking into account “the factual and practical considera-
tions of everyday life on which reasonable and prudent
men, not legal technicians, act,” Ornelas v. United States,
517 U.S. 690, 695 (1996) (internal quotation marks
omitted).
Officer Struble testified that he first became suspicious
that Rodriguez was engaged in criminal activity for a
number of reasons. When he approached the vehicle, he
Cite as: 575 U. S. ____ (2015) 11
THOMAS, J., dissenting
smelled an “overwhelming odor of air freshener coming
from the vehicle,” which is, in his experience, “a common
attempt to conceal an odor that [people] don’t want . . . to
be smelled by the police.” App. 20–21. He also observed,
upon approaching the front window on the passenger side
of the vehicle, that Rodriguez’s passenger, Scott Pollman,
appeared nervous. Pollman pulled his hat down low,
puffed nervously on a cigarette, and refused to make eye
contact with him. The officer thought he was “more nerv-
ous than your typical passenger” who “do[esn’t] have
anything to worry about because [t]hey didn’t commit a
[traffic] violation.” Id., at 34.
Officer Struble’s interactions with the vehicle’s occu-
pants only increased his suspicions. When he asked Rod-
riguez why he had driven onto the shoulder, Rodriguez
claimed that he swerved to avoid a pothole. But that story
could not be squared with Officer Struble’s observation of
the vehicle slowly driving off the road before being jerked
back onto it. And when Officer Struble asked Pollman
where they were coming from and where they were going,
Pollman told him they were traveling from Omaha, Ne-
braska, back to Norfolk, Nebraska, after looking at a
vehicle they were considering purchasing. Pollman told
the officer that he had neither seen pictures of the vehicle
nor confirmed title before the trip. As Officer Struble
explained, it “seemed suspicious” to him “to drive . . .
approximately two hours . . . late at night to see a vehicle
sight unseen to possibly buy it,” id., at 26, and to go from
Norfolk to Omaha to look at it because “[u]sually people
leave Omaha to go get vehicles, not the other way around”
due to higher Omaha taxes, id., at 65.
These facts, taken together, easily meet our standard for
reasonable suspicion. “[N]ervous, evasive behavior is a
pertinent factor in determining reasonable suspicion,”
Illinois v. Wardlow, 528 U.S. 119, 124 (2000), and both
vehicle occupants were engaged in such conduct. The
12 RODRIGUEZ v. UNITED STATES
THOMAS, J., dissenting
officer also recognized heavy use of air freshener, which, in
his experience, indicated the presence of contraband in the
vehicle. “[C]ommonsense judgments and inferences about
human behavior” further support the officer’s conclusion
that Pollman’s story about their trip was likely a cover
story for illegal activity. Id., at 125. Taking into account
all the relevant facts, Officer Struble possessed reasonable
suspicion of criminal activity to conduct the dog sniff.
Rodriguez contends that reasonable suspicion cannot
exist because each of the actions giving rise to the officer’s
suspicions could be entirely innocent, but our cases easily
dispose of that argument. Acts that, by themselves, might
be innocent can, when taken together, give rise to reason-
able suspicion. United States v. Arvizu, 534 U.S. 266,
274–275 (2002). Terry is a classic example, as it involved
two individuals repeatedly walking back and forth, looking
into a store window, and conferring with one another as
well as with a third man. 392 U.S., at 6. The Court
reasoned that this “series of acts, each of them perhaps
innocent in itself, . . . together warranted further investi-
gation,” id., at 22, and it has reiterated that analysis in a
number of cases, see, e.g., Arvizu, supra, at 277; United
States v. Sokolow, 490 U.S. 1, 9–10 (1989). This one is no
different.
* * *
I would conclude that the police did not violate the
Fourth Amendment here. Officer Struble possessed prob-
able cause to stop Rodriguez for driving on the shoulder,
and he executed the subsequent stop in a reasonable
manner. Our decision in Caballes requires no more. The
majority’s holding to the contrary is irreconcilable with
Caballes and a number of other routine police practices,
distorts the distinction between traffic stops justified by
probable cause and those justified by reasonable suspicion,
and abandons reasonableness as the touchstone of the
Fourth Amendment. I respectfully dissent.
Cite as: 575 U. S. ____ (2015) 1
ALITO, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 13–9972
_________________
DENNYS RODRIGUEZ, PETITIONER v.
UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT
[April 21, 2015]
JUSTICE ALITO, dissenting.
This is an unnecessary,1 impractical, and arbitrary
decision. It addresses a purely hypothetical question:
whether the traffic stop in this case would be unreason-
able if the police officer, prior to leading a drug-sniffing dog
around the exterior of petitioner’s car, did not already
have reasonable suspicion that the car contained drugs.
In fact, however, the police officer did have reasonable
suspicion, and, as a result, the officer was justified in
detaining the occupants for the short period of time (seven
or eight minutes) that is at issue.
The relevant facts are not in dispute. Officer Struble,
who made the stop, was the only witness at the suppres-
sion hearing, and his testimony about what happened was
not challenged. Defense counsel argued that the facts
recounted by Officer Struble were insufficient to establish
reasonable suspicion, but defense counsel did not dispute
those facts or attack the officer’s credibility. Similarly, the
Magistrate Judge who conducted the hearing did not
question the officer’s credibility. And as JUSTICE
THOMAS’s opinion shows, the facts recounted by Officer
Struble “easily meet our standard for reasonable suspi-
cion.” Ante, at 11 (dissenting opinion); see also, e.g., United
——————
1 See Brief in Opposition 11–14.
2 RODRIGUEZ v. UNITED STATES
ALITO, J., dissenting
States v. Carpenter, 462 F.3d 981, 986–987 (CA8 2006)
(finding reasonable suspicion for a dog sniff based on
implausible travel plans and nervous conduct); United
States v. Ludwig, 641 F.3d 1243, 1248–1250 (CA10 2011)
(finding reasonable suspicion for a dog sniff where, among
other things, the officer smelled “strong masking odors,”
the defendant’s “account of his travel was suspect,” and
the defendant “was exceptionally nervous throughout his
encounter”).
Not only does the Court reach out to decide a question
not really presented by the facts in this case, but the
Court’s answer to that question is arbitrary. The Court
refuses to address the real Fourth Amendment question:
whether the stop was unreasonably prolonged. Instead,
the Court latches onto the fact that Officer Struble deliv-
ered the warning prior to the dog sniff and proclaims that
the authority to detain based on a traffic stop ends when a
citation or warning is handed over to the driver. The
Court thus holds that the Fourth Amendment was vio-
lated, not because of the length of the stop, but simply be-
cause of the sequence in which Officer Struble chose to
perform his tasks.
This holding is not only arbitrary; it is perverse since
Officer Struble chose that sequence for the purpose of
protecting his own safety and possibly the safety of others.
See App. 71–72. Without prolonging the stop, Officer
Struble could have conducted the dog sniff while one of the
tasks that the Court regards as properly part of the traffic
stop was still in progress, but that sequence would have
entailed unnecessary risk. At approximately 12:19 a.m.,
after collecting Pollman’s driver’s license, Officer Struble
did two things. He called in the information needed to do
a records check on Pollman (a step that the Court recog-
nizes was properly part of the traffic stop), and he re-
quested that another officer report to the scene. Officer
Struble had decided to perform a dog sniff but did not
Cite as: 575 U. S. ____ (2015) 3
ALITO, J., dissenting
want to do that without another officer present. When
occupants of a vehicle who know that their vehicle con-
tains a large amount of illegal drugs see that a drug-
sniffing dog has alerted for the presence of drugs, they will
almost certainly realize that the police will then proceed to
search the vehicle, discover the drugs, and make arrests.
Thus, it is reasonable for an officer to believe that an alert
will increase the risk that the occupants of the vehicle will
attempt to flee or perhaps even attack the officer. See,
e.g., United States v. Dawdy, 46 F.3d 1427, 1429 (CA8
1995) (recounting scuffle between officer and defendant
after drugs were discovered).
In this case, Officer Struble was concerned that he was
outnumbered at the scene, and he therefore called for
backup and waited for the arrival of another officer before
conducting the sniff. As a result, the sniff was not com-
pleted until seven or eight minutes after he delivered the
warning. But Officer Struble could have proceeded with
the dog sniff while he was waiting for the results of the
records check on Pollman and before the arrival of the
second officer. The drug-sniffing dog was present in Of-
ficer Struble’s car. If he had chosen that riskier sequence
of events, the dog sniff would have been completed before
the point in time when, according to the Court’s analysis,
the authority to detain for the traffic stop ended. Thus, an
action that would have been lawful had the officer made
the unreasonable decision to risk his life became un-
lawful when the officer made the reasonable decision to wait
a few minutes for backup. Officer Struble’s error—
apparently—was following prudent procedures motivated
by legitimate safety concerns. The Court’s holding there-
fore makes no practical sense. And nothing in the Fourth
Amendment, which speaks of reasonableness, compels this
arbitrary line.
The rule that the Court adopts will do little good going
4 RODRIGUEZ v. UNITED STATES
ALITO, J., dissenting
forward.2 It is unlikely to have any appreciable effect on
the length of future traffic stops. Most officers will learn
the prescribed sequence of events even if they cannot
fathom the reason for that requirement. (I would love to
be the proverbial fly on the wall when police instructors
teach this rule to officers who make traffic stops.)
For these reasons and those set out in JUSTICE
THOMAS’s opinion, I respectfully dissent.
——————
2 It
is important to note that the Court’s decision does not affect pro-
cedures routinely carried out during traffic stops, including “checking
the driver’s license, determining whether there are outstanding war-
rants against the driver, and inspecting the automobile’s registration
and proof of insurance.” Ante, at 6. And the Court reaffirms that police
“may conduct certain unrelated checks during an otherwise lawful
traffic stop.” Ibid. Thus, it remains true that police may ask questions
aimed at uncovering other criminal conduct and may order occupants
out of their car during a valid stop. See Arizona v. Johnson, 555 U.S.
323, 333 (2009); Maryland v. Wilson, 519 U.S. 408, 414–415 (1997);
Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977) (per curiam). | Ten years ago, we explained that “conducting a dog sniff [does] not change the character of a traffic stop that is lawful at its inception and otherwise executed in a reason- able manner.” (2005). The only question here is whether an officer exe- cuted a stop in a reasonable manner when he waited to conduct a dog sniff until after he had given the driver a written warning and a backup unit had arrived, bringing the overall duration of the stop to 29 minutes. Because the stop was reasonably executed, no Fourth Amendment violation occurred. The Court’s holding to the contrary cannot be reconciled with our decision in or a number of common police practices. It was also unneces- sary, as the officer possessed reasonable suspicion to continue to hold the driver to conduct the dog sniff. I respectfully dissent. I The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U. S. Const., Amdt. 4. As the text indicates, and as we 2 RODRIGUEZ v. UNITED STATES THOMAS, J., dissenting have repeatedly confirmed, “the ultimate touchstone of the Fourth Amendment is ‘reasonableness.’ ” Brigham v. Stuart, We have defined rea- sonableness “in objective terms by examining the totality of the circumstances,” and by considering “the traditional protections against unreasonable searches and seizures afforded by the common law at the time of the framing,” v. Lago Vista, (internal quotation marks omitted). When traditional protections have not provided a definitive answer, our precedents have “ana- lyzed a search or seizure in light of traditional standards of reasonableness by assessing, on the one hand, the de- gree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the pro- motion of legitimate governmental interests.” Virginia v. (internal quotation marks omitted). Although a traffic stop “constitutes a ‘seizure’ of ‘per- sons’ within the meaning of [the Fourth Amendment],” such a seizure is constitutionally “reasonable where the police have probable cause to believe that a traffic viola- tion has occurred.” 809–810 But “a seizure that is lawful at its incep- tion can violate the Fourth Amendment if its manner of execution unreasonably infringes interests protected by the Constitution.” Because Rodriguez does not dispute that Officer Struble had probable cause to stop him, the only question is whether the stop was otherwise executed in a reasonable manner. See Brief for Appellant in No. 13–1176 (CA8), p. 4, n. 2. I easily conclude that it was. Approximately 29 minutes passed from the time Officer Struble stopped Rodriguez until his narcotics-detection dog alerted to the presence of drugs. That amount of time is hardly out of the ordinary for a traffic stop by a single officer of a vehi- Cite as: 575 U. S. (2015) 3 THOMAS, J., dissenting cle containing multiple occupants even when no dog sniff is involved. See, e.g., United (CA6 2007) (22 minutes); United States v. Barragan, 379 F.3d 524 (approximately 30 minutes). During that time, Officer Struble conducted the ordinary activities of a traffic stop—he approached the vehicle, questioned Rodriguez about the observed violation, asked Pollman about their travel plans, ran serial warrant checks on Rodriguez and Pollman, and issued a written warning to Rodriguez. And when he decided to conduct a dog sniff, he took the precaution of calling for backup out of concern for his safety. See ; see also (per curiam) (officer safety is a “legitimate and weighty” con- cern relevant to reasonableness). As makes clear, the fact that Officer Struble waited until after he gave Rodriguez the warning to con- duct the dog sniff does not alter this analysis. Because “the use of a well-trained narcotics-detection dog gen- erally does not implicate legitimate privacy interests,” 543 U.S., at 409, “conducting a dog sniff would not change the character of a traffic stop that is lawful at its inception and otherwise executed in a reasonable manner,” at The stop here was “lawful at its inception and other- wise executed in a reasonable manner.” As in Ca- balles, “conducting a dog sniff [did] not change the charac- ter of [the] traffic stop,” ib and thus no Fourth Amendment violation occurred. II Rather than adhere to the reasonableness requirement that we have repeatedly characterized as the “touchstone of the Fourth Amendment,” Brigham at the majority constructed a test of its own that is incon- sistent with our precedents. 4 RODRIGUEZ v. UNITED STATES THOMAS, J., dissenting A The majority’s rule requires a traffic stop to “en[d] when tasks tied to the traffic infraction are—or reasonably should have been—completed.” Ante, at 5. “If an officer can complete traffic-based inquiries expeditiously, then that is the amount of time reasonably required to complete the stop’s mission” and he may hold the individual no longer. Ante, at 8 (internal quotation marks and altera- tions omitted). The majority’s rule thus imposes a one- way ratchet for constitutional protection linked to the characteristics of the individual officer conducting the stop: If a driver is stopped by a particularly efficient of- ficer, then he will be entitled to be released from the traf- fic stop after a shorter period of time than a driver stopped by a less efficient officer. Similarly, if a driver is stopped by an officer with access to technology that can shorten a records check, then he will be entitled to be released from the stop after a shorter period of time than an individual stopped by an officer without access to such technology. I “cannot accept that the search and seizure protections of the Fourth Amendment are so variable and can be made to turn upon such trivialities.” (citations omitted). We have repeatedly explained that the reasonableness inquiry must not hinge on the characteris- tics of the individual officer conducting the seizure. We have held, for example, that an officer’s state of mind “does not invalidate [an] action taken as long as the cir- cumstances, viewed objectively, justify that action.” at 813 (internal quotation marks omitted). We have spurned theories that would make the Fourth Amendment “change with local law enforcement practices.” at 172. And we have rejected a rule that would require the offense establishing probable cause to be “closely related to” the offense identified by the arresting officer, as such a rule would make “the constitutionality of an arrest vary from place to place and from time to time, depending Cite as: 575 U. S. (2015) 5 THOMAS, J., dissenting on whether the arresting officer states the reason for the detention and, if so, whether he correctly identifies a general class of offense for which probable cause exists.” (internal quotation marks and citation omitted). In Devenpeck, a unanimous Court explained: “An arrest made by a knowl- edgeable, veteran officer would be valid, whereas an arrest made by a rookie in precisely the same circumstances would not. We see no reason to ascribe to the Fourth Amendment such arbitrarily variable protection.” The majority’s logic would produce similarly arbitrary results. Under its reasoning, a traffic stop made by a rookie could be executed in a reasonable manner, whereas the same traffic stop made by a knowledgeable, veteran officer in precisely the same circumstances might not, if in fact his knowledge and experience made him capable of completing the stop faster. We have long rejected inter- pretations of the Fourth Amendment that would produce such haphazard results, and I see no reason to depart from our consistent practice today. B As if that were not enough, the majority also limits the duration of the stop to the time it takes the officer to complete a narrow category of “traffic-based inquiries.” Ante, at 8. According to the majority, these inquiries include those that “serve the same objective as enforce- ment of the traffic code: ensuring that vehicles on the road are operated safely and responsibly.” Ante, at 6. Inquiries directed to “detecting evidence of ordinary criminal wrongdoing” are not traffic-related inquiries and thus cannot count toward the overall duration of the stop. (internal quotation marks and alteration omitted). The combination of that definition of traffic-related inquiries with the majority’s officer-specific durational limit produces a result demonstrably at odds with our 6 RODRIGUEZ v. UNITED STATES THOMAS, J., dissenting decision in expressly anticipated that a traffic stop could be reasonably prolonged for officers to engage in a dog sniff. We explained that no Fourth Amendment violation had occurred in where the “duration of the stop was entirely justified by the traffic offense and the ordinary inquiries incident to such a stop,” but suggested a different result might attend a case “involving a dog sniff that occurred during an unrea- sonably prolonged traffic stop.” 543 U.S., – (emphasis added). The dividing line was whether the overall duration of the stop exceeded “the time reasonably required to complete th[e] mission,” not, as the majority suggests, whether the duration of the stop “in fact” exceeded the time necessary to complete the traffic- related inquiries, ante, at 8. The majority’s approach draws an artificial line between dog sniffs and other common police practices. The lower courts have routinely confirmed that warrant checks are a constitutionally permissible part of a traffic stop, see, e.g., United (CA11 1999); United ; United (CA5 1993), and the majority confirms that it finds no fault in these measures, ante, at 6. Yet its reasoning suggests the opposite. Such warrant checks look more like they are directed to “detecting evidence of ordinary crimi- nal wrongdoing” than to “ensuring that vehicles on the road are operated safely and responsibly.” Ante, at 6 (internal quotation marks and alteration omitted). Per- haps one could argue that the existence of an outstanding warrant might make a driver less likely to operate his vehicle safely and responsibly on the road, but the same could be said about a driver in possession of contraband. A driver confronted by the police in either case might try to flee or become violent toward the officer. But under the majority’s analysis, a dog sniff, which is directed at uncov- Cite as: 575 U. S. (2015) 7 THOMAS, J., dissenting ering that problem, is not treated as a traffic-based in- quiry. Warrant checks, arguably, should fare no better. The majority suggests that a warrant check is an ordinary inquiry incident to a traffic stop because it can be used “ ‘to determine whether the apparent traffic violator is wanted for one or more previous traffic offenses.’ ” Ante, at 6 (quoting 4 W. LaFave, Search and Seizure p. 516 (5th ed. 2012)). But as the very treatise on which the majority relies notes, such checks are a “manifest[ation of] the ‘war on drugs’ motivation so often underlying [routine traffic] stops,” and thus are very much like the dog sniff in this case. at 507–508. Investigative questioning rests on the same basis as the dog sniff. “Asking questions is an essential part of police investigations.” And the lower courts have routinely upheld such questioning dur- ing routine traffic stops. See, e.g., United ; United The majority’s rea- soning appears to allow officers to engage in some ques- tioning aimed at detecting evidence of ordinary criminal wrongdoing. Ante, at 5. But it is hard to see how such inquiries fall within the “seizure’s ‘mission’ [of ] ad- dress[ing] the traffic violation that warranted the stop,” or “attend[ing] to related safety concerns.” Its reason- ing appears to come down to the principle that dogs are different. C On a more fundamental level, the majority’s inquiry elides the distinction between traffic stops based on prob- able cause and those based on reasonable suspicion. Probable cause is the “traditional justification” for the seizure of a person. (emphasis deleted); see also 8 RODRIGUEZ v. UNITED STATES THOMAS, J., dissenting 207–208 (1979). This Court created an exception to that rule in 2 U.S. 1 permitting “police officers who suspect criminal activity to make limited intrusions on an individual’s personal security based on less than probable cause,” Michigan v. Summers, 452 U.S. 692, 698 (1981). Reasonable suspicion is the justification for such seizures. Prado Navarette v. California, 572 U. S. (slip op., at 3). Traffic stops can be initiated based on probable cause or reasonable suspicion. Although the Court has commented that a routine traffic stop is “more analogous to a so-called ‘Terry stop’ than to a formal arrest,” it has rejected the notion “that a traffic stop supported by probable cause may not exceed the bounds set by the Fourth Amendment on the scope of a Terry stop.” Berkemer v. McCarty, 468 U.S. 420, 4, and n. 29 (1984) (citation omitted). Although all traffic stops must be executed reasonably, our precedents make clear that traffic stops justified by reasonable suspicion are subject to additional limitations that those justified by probable cause are not. A traffic stop based on reasonable suspicion, like all Terry stops, must be “justified at its inception” and “reasonably related in scope to the circumstances which justified the interfer- ence in the first place.” 542 U.S., at (internal quotation marks omitted). It also “cannot continue for an excessive period of time or resemble a traditional arrest.” at –186 (citation omitted). By contrast, a stop based on probable cause affords an officer considerably more leeway. In such seizures, an officer may engage in a warrantless arrest of the driver, 532 U.S., at 354, a warrantless search incident to arrest of the driver, Riley v. California, 573 U. S. (slip op., at 5), and a warrantless search incident to arrest of the vehicle if it is reasonable to believe evidence relevant to the crime of arrest might be found there, Arizona v. Gant, 556 U.S. 332, 335 Cite as: 575 U. S. (2015) 9 THOMAS, J., dissenting The majority casually tosses this distinction aside. It asserts that the traffic stop in this case, which was undis- putedly initiated on the basis of probable cause, can last no longer than is in fact necessary to effectuate the mis- sion of the stop. Ante, at 8. And, it assumes that the mission of the stop was merely to write a traffic ticket, rather than to consider making a custodial arrest. Ante, at 5. In support of that durational requirement, it relies primarily on cases involving Terry stops. See ante, at 5–7 (analyzing “stop and frisk” of passenger in a vehicle temporarily seized for a traffic violation); United States v. Sharpe, 470 U.S. 675 (1985) (analyzing seizure of individuals based on suspicion of marijuana trafficking); Florida v. Royer, 460 U.S. 491 (1983) (plurality opinion) (analyzing seizure of man walking through airport on suspicion of narcotics activity)). The only case involving a traffic stop based on probable cause that the majority cites for its rule is But, that decision provides no support for today’s restructuring of our Fourth Amendment jurisprudence. In the Court made clear that, in the context of a traffic stop supported by probable cause, “a dog sniff would not change the character of a traffic stop that is lawful at its inception and otherwise executed in a reasonable manner.” 543 U.S., at To be sure, the dissent in would have “appl[ied] Terry’s reasonable-relation test to determine whether the canine sniff impermissibly ex- panded the scope of the initially valid seizure of” But even it conceded that the majority had “implicitly [rejected] the application of Terry to a traffic stop converted, by calling in a dog, to a drug search.” By strictly limiting the tasks that define the durational scope of the traffic stop, the majority accomplishes today what the dissent could not: strictly limiting the 10 RODRIGUEZ v. UNITED STATES THOMAS, J., dissenting scope of an officer’s activities during a traffic stop justified by probable cause. In doing so, it renders the difference between probable cause and reasonable suspicion virtually meaningless in this context. That shift is supported nei- ther by the Fourth Amendment nor by our precedents interpreting it. And, it results in a constitutional frame- work that lacks predictability. Had Officer Struble ar- rested, handcuffed, and taken Rodriguez to the police station for his traffic violation, he would have complied with the Fourth Amendment. See at 354– 355. But because he made Rodriguez wait for seven or eight extra minutes until a dog arrived, he evidently committed a constitutional violation. Such a view of the Fourth Amendment makes little sense. III Today’s revision of our Fourth Amendment jurispru- dence was also entirely unnecessary. Rodriguez suffered no Fourth Amendment violation here for an entirely inde- pendent reason: Officer Struble had reasonable suspicion to continue to hold him for investigative purposes. Our precedents make clear that the Fourth Amendment per- mits an officer to conduct an investigative traffic stop when that officer has “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” Prado Navarette, 572 U. S., at (slip op., at 3) (internal quotation marks omitted). Reasonable suspicion is determined by looking at “the whole picture,” ib taking into account “the factual and practical considera- tions of everyday life on which reasonable and prudent men, not legal technicians, act,” (internal quotation marks omitted). Officer Struble testified that he first became suspicious that Rodriguez was engaged in criminal activity for a number of reasons. When he approached the vehicle, he Cite as: 575 U. S. (2015) 11 THOMAS, J., dissenting smelled an “overwhelming odor of air freshener coming from the vehicle,” which is, in his experience, “a common attempt to conceal an odor that [people] don’t want to be smelled by the police.” App. 20–21. He also observed, upon approaching the front window on the passenger side of the vehicle, that Rodriguez’s passenger, Scott Pollman, appeared nervous. Pollman pulled his hat down low, puffed nervously on a cigarette, and refused to make eye contact with him. The officer thought he was “more nerv- ous than your typical passenger” who “do[esn’t] have anything to worry about because [t]hey didn’t commit a [traffic] violation.” Officer Struble’s interactions with the vehicle’s occu- pants only increased his suspicions. When he asked Rod- riguez why he had driven onto the shoulder, Rodriguez claimed that he swerved to avoid a pothole. But that story could not be squared with Officer Struble’s observation of the vehicle slowly driving off the road before being jerked back onto it. And when Officer Struble asked Pollman where they were coming from and where they were going, Pollman told him they were traveling from Omaha, Ne- braska, back to Norfolk, Nebraska, after looking at a vehicle they were considering purchasing. Pollman told the officer that he had neither seen pictures of the vehicle nor confirmed title before the trip. As Officer Struble explained, it “seemed suspicious” to him “to drive approximately two hours late at night to see a vehicle sight unseen to possibly buy it,” and to go from Norfolk to Omaha to look at it because “[u]sually people leave Omaha to go get vehicles, not the other way around” due to higher Omaha taxes, These facts, taken together, easily meet our standard for reasonable suspicion. “[N]ervous, evasive behavior is a pertinent factor in determining reasonable suspicion,” and both vehicle occupants were engaged in such conduct. The 12 RODRIGUEZ v. UNITED STATES THOMAS, J., dissenting officer also recognized heavy use of air freshener, which, in his experience, indicated the presence of contraband in the vehicle. “[C]ommonsense judgments and inferences about human behavior” further support the officer’s conclusion that Pollman’s story about their trip was likely a cover story for illegal activity. Taking into account all the relevant facts, Officer Struble possessed reasonable suspicion of criminal activity to conduct the dog sniff. Rodriguez contends that reasonable suspicion cannot exist because each of the actions giving rise to the officer’s suspicions could be entirely innocent, but our cases easily dispose of that argument. Acts that, by themselves, might be innocent can, when taken together, give rise to reason- able suspicion. United 274–275 Terry is a classic example, as it involved two individuals repeatedly walking back and forth, looking into a store window, and conferring with one another as well as with a third 2 U.S., at 6. The Court reasoned that this “series of acts, each of them perhaps innocent in itself, together warranted further investi- gation,” and it has reiterated that analysis in a number of cases, see, e.g., ; United This one is no different. * * * I would conclude that the police did not violate the Fourth Amendment here. Officer Struble possessed prob- able cause to stop Rodriguez for driving on the shoulder, and he executed the subsequent stop in a reasonable manner. Our decision in requires no more. The majority’s holding to the contrary is irreconcilable with and a number of other routine police practices, distorts the distinction between traffic stops justified by probable cause and those justified by reasonable suspicion, and abandons reasonableness as the touchstone of the Fourth Amendment. I respectfully dissent. Cite as: 575 U. S. (2015) 1 ALITO, J., dissenting SUPREME COURT OF THE UNITED STATES No. 13–9972 DENNYS RODRIGUEZ, PETITIONER v. UNITED STATES ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT [April 21, 2015] JUSTICE ALITO, dissenting. This is an unnecessary,1 impractical, and arbitrary decision. It addresses a purely hypothetical question: whether the traffic stop in this case would be unreason- able if the police officer, prior to leading a drug-sniffing dog around the exterior of petitioner’s car, did not already have reasonable suspicion that the car contained drugs. In fact, however, the police officer did have reasonable suspicion, and, as a result, the officer was justified in detaining the occupants for the short period of time (seven or eight minutes) that is at issue. The relevant facts are not in dispute. Officer Struble, who made the stop, was the only witness at the suppres- sion hearing, and his testimony about what happened was not challenged. Defense counsel argued that the facts recounted by Officer Struble were insufficient to establish reasonable suspicion, but defense counsel did not dispute those facts or attack the officer’s credibility. Similarly, the Magistrate Judge who conducted the hearing did not question the officer’s credibility. And as JUSTICE THOMAS’s opinion shows, the facts recounted by Officer Struble “easily meet our standard for reasonable suspi- cion.” Ante, at 11 (dissenting opinion); see also, e.g., United —————— 1 See Brief in Opposition 11–14. 2 RODRIGUEZ v. UNITED STATES ALITO, J., dissenting (finding reasonable suspicion for a dog sniff based on implausible travel plans and nervous conduct); United 641 F.3d 3, 8–1250 (finding reasonable suspicion for a dog sniff where, among other things, the officer smelled “strong masking odors,” the defendant’s “account of his travel was suspect,” and the defendant “was exceptionally nervous throughout his encounter”). Not only does the Court reach out to decide a question not really presented by the facts in this case, but the Court’s answer to that question is arbitrary. The Court refuses to address the real Fourth Amendment question: whether the stop was unreasonably prolonged. Instead, the Court latches onto the fact that Officer Struble deliv- ered the warning prior to the dog sniff and proclaims that the authority to detain based on a traffic stop ends when a citation or warning is handed over to the driver. The Court thus holds that the Fourth Amendment was vio- lated, not because of the length of the stop, but simply be- cause of the sequence in which Officer Struble chose to perform his tasks. This holding is not only arbitrary; it is perverse since Officer Struble chose that sequence for the purpose of protecting his own safety and possibly the safety of others. See App. 71–72. Without prolonging the stop, Officer Struble could have conducted the dog sniff while one of the tasks that the Court regards as properly part of the traffic stop was still in progress, but that sequence would have entailed unnecessary risk. At approximately 12:19 a.m., after collecting Pollman’s driver’s license, Officer Struble did two things. He called in the information needed to do a records check on Pollman (a step that the Court recog- nizes was properly part of the traffic stop), and he re- quested that another officer report to the scene. Officer Struble had decided to perform a dog sniff but did not Cite as: 575 U. S. (2015) 3 ALITO, J., dissenting want to do that without another officer present. When occupants of a vehicle who know that their vehicle con- tains a large amount of illegal drugs see that a drug- sniffing dog has alerted for the presence of drugs, they will almost certainly realize that the police will then proceed to search the vehicle, discover the drugs, and make arrests. Thus, it is reasonable for an officer to believe that an alert will increase the risk that the occupants of the vehicle will attempt to flee or perhaps even attack the officer. See, e.g., United (CA8 1995) (recounting scuffle between officer and defendant after drugs were discovered). In this case, Officer Struble was concerned that he was outnumbered at the scene, and he therefore called for backup and waited for the arrival of another officer before conducting the sniff. As a result, the sniff was not com- pleted until seven or eight minutes after he delivered the warning. But Officer Struble could have proceeded with the dog sniff while he was waiting for the results of the records check on Pollman and before the arrival of the second officer. The drug-sniffing dog was present in Of- ficer Struble’s car. If he had chosen that riskier sequence of events, the dog sniff would have been completed before the point in time when, according to the Court’s analysis, the authority to detain for the traffic stop ended. Thus, an action that would have been lawful had the officer made the unreasonable decision to risk his life became un- lawful when the officer made the reasonable decision to wait a few minutes for backup. Officer Struble’s error— apparently—was following prudent procedures motivated by legitimate safety concerns. The Court’s holding there- fore makes no practical sense. And nothing in the Fourth Amendment, which speaks of reasonableness, compels this arbitrary line. The rule that the Court adopts will do little good going 4 RODRIGUEZ v. UNITED STATES ALITO, J., dissenting forward.2 It is unlikely to have any appreciable effect on the length of future traffic stops. Most officers will learn the prescribed sequence of events even if they cannot fathom the reason for that requirement. (I would love to be the proverbial fly on the wall when police instructors teach this rule to officers who make traffic stops.) For these reasons and those set out in JUSTICE THOMAS’s opinion, I respectfully dissent. —————— 2 It is important to note that the Court’s decision does not affect pro- cedures routinely carried out during traffic stops, including “checking the driver’s license, determining whether there are outstanding war- rants against the driver, and inspecting the automobile’s registration and proof of insurance.” Ante, at 6. And the Court reaffirms that police “may conduct certain unrelated checks during an otherwise lawful traffic stop.” Thus, it remains true that police may ask questions aimed at uncovering other criminal conduct and may order occupants out of their car during a valid stop. See 555 U.S. 323, 333 ; 519 U.S. ; |
Justice Alito | second_dissenting | false | Kingsley v. Hendrickson | 2015-06-22T00:00:00 | null | https://www.courtlistener.com/opinion/2811847/kingsley-v-hendrickson/ | https://www.courtlistener.com/api/rest/v3/clusters/2811847/ | 2,015 | 2014-068 | 2 | 5 | 4 | I would dismiss this case as improvidently granted.
Before deciding what a pretrial detainee must show in
order to prevail on a due process excessive force claim, we
should decide whether a pretrial detainee can bring a
Fourth Amendment claim based on the use of excessive
force by a detention facility employee. We have not yet
decided that question. See Graham v. Connor, 490 U.S.
386, 395, n. 10 (1989). If a pretrial detainee can bring
such a claim, we need not and should not rely on substan-
tive due process. See Albright v. Oliver, 510 U.S. 266, 273
(1994) (plurality opinion); Graham, 490 U.S., at 395. It is
settled that the test for an unreasonable seizure under the
Fourth Amendment is objective, see id., at 397, so if a
pretrial detainee can bring such a claim, it apparently
would be indistinguishable from the substantive due
process claim that the Court discusses.
I would not decide the due process issue presented in
this case until the availability of a Fourth Amendment
claim is settled, and I would therefore dismiss this case as
improvidently granted. | I would dismiss this case as improvidently granted. Before deciding what a pretrial detainee must show in order to prevail on a due process excessive force claim, we should decide whether a pretrial detainee can bring a Fourth Amendment claim based on the use of excessive force by a detention facility employee. We have not yet decided that question. See v. Connor, 490 U.S. 386, 395, n. 10 (1989). If a pretrial detainee can bring such a claim, we need not and should not rely on substan- tive due process. See (1994) (plurality opinion); It is settled that the test for an unreasonable seizure under the Fourth Amendment is objective, see so if a pretrial detainee can bring such a claim, it apparently would be indistinguishable from the substantive due process claim that the Court discusses. I would not decide the due process issue presented in this case until the availability of a Fourth Amendment claim is settled, and I would therefore dismiss this case as improvidently granted. |
Justice Marshall | majority | false | Hodel v. Indiana | 1981-06-15T00:00:00 | null | https://www.courtlistener.com/opinion/110517/hodel-v-indiana/ | https://www.courtlistener.com/api/rest/v3/clusters/110517/ | 1,981 | 1980-113 | 2 | 9 | 0 | This appeal, like Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., ante, p. 264, also decided today, involves a broad constitutional challenge to numerous important provisions of the Surface Mining Control and Reclamation Act of 1977, 91 Stat. 445, 30 U.S. C. § 1201 et seq. (1976 ed., Supp. III) (Surface Mining Act or Act). Many of the specific provisions attacked in this case, however, differ from the "steepslope" provisions that were the primary focus of the challenge in Virginia Surface Mining. The United States District Court for the Southern District of Indiana ruled that the provisions of the Act challenged here are unconstitutional and permanently enjoined their enforcement. 501 F. Supp. 452 (1980). We noted probable jurisdiction sub nom. Andrus v. Indiana, 449 U.S. 816 (1980), and we now reverse.
I
A
The basic structure of the Surface Mining Act is described in Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., *318 ante, at 268-272, and it will therefore suffice here to briefly describe the specific provisions drawn into question in this case. Several of the challenged sections of the Act are known collectively as the "prime farmland" provisions. These sections establish special requirements for surface mining operations conducted on land that both qualifies as prime farmland under a definition promulgated by the Secretary of Agriculture and has historically been used as cropland within the meaning of the regulations of the Secretary of the Interior (Secretary) implementing the Surface Mining Act. § 701 (20), 30 U.S. C. § 1291 (20) (1976 ed., Supp. III).[1] A permit for surface coal mining on such lands may be granted only if the mine operator can demonstrate its "technological capability to restore such mined area, within a reasonable time, to equivalent or higher levels of yield as nonmined prime farmland in the surrounding area under equivalent levels of management . . . ." § 510 (d) (1), 30 U.S. C. § 1260 (d) (1) (1976 ed., Supp. III). The operator must also show *319 that it can "meet the soil reconstruction standards" for prime farmland set forth in § 515 (b) (7), 30 U.S. C. § 1265 (b) (7) (1976 ed., Supp. III). That section specifies that the distinct soil layers on prime farmland must be separately removed, segregated, stockpiled, and then properly replaced and regraded. Furthermore, § 519 (c) (2), 30 U.S. C. § 1269 (c) (2) (1976 ed., Supp. III), provides that upon its completion of mining activities on prime farmland, a mine operator can have its performance bond released only on a showing that soil productivity "has returned to equivalent levels of yield as nonmined land of the same soil type in the surrounding area under equivalent management practices . . . ."[2]
Also challenged here are some of the Act's more general provisions that are applicable throughout the country. These include § 515 (b) (3), which requires restoration of mined land to its approximate original contour,[3] and the directive in § 515 (b) (5), 30 U.S. C. § 1265 (b) (5) (1976 ed., Supp. III), that surface mine operators remove topsoil separately during mining activities and preserve it for use during reclamation if it is not to be replaced immediately on the backfill area of the mining cut. Section 508, 30 U.S. C. § 1258 (1976 ed., Supp. III), requires applicants for surface coal mining permits to submit proposed reclamation plans specifying the intended postmining use of the land and the method by which that use will be achieved. In addition, §§ 522 (a), (c), (d), 30 U.S. C. §§ 1272 (a), (c), (d) (1976 ed., Supp. III), require States wishing to assume permanent *320 regulatory authority over surface coal mining to establish an administrative procedure for determining whether particular lands are unsuitable for some or all kinds of surface mining.[4] Section 522 (e), 30 U.S. C. § 1272 (e) (1976 ed., Supp. III), proscribes mining activity within 100 feet of roadways and cemeteries or within 300 feet of public buildings, schools, churches, public parks, or occupied dwellings. Finally, the Act's procedures for collecting proposed civil penalties contained in § 518 (c), 30 U.S. C. § 1268 (c) (1976 ed., Supp. III), are also drawn into question here.
B
These suits were filed in August 1978, one by the State of Indiana and several of its officials, and the other by the Indiana Coal Association, several coal mine operators, and others. The complaints alleged that the Act contravenes the Commerce Clause, the equal protection and due process guarantees of the Due Process Clause of the Fifth Amendment, the Tenth Amendment, and the Just Compensation Clause of the Fifth Amendment.
The District Court held a 1-day hearing on plaintiffs' motion for a preliminary injunction and defendants' motion to dismiss, and the court ultimately decided the case on the merits without taking further evidence. On June 10, 1980, the District Court issued an order and opinion sustaining each of plaintiffs' constitutional challenges and permanently enjoining the Secretary from enforcing the challenged sections of the Act. 501 F. Supp. 452 (SD Ind. 1980).[5]
*321 II
The District Court gave two rationales for its decision on the Commerce Clause issue. The court first held that the six "prime farmland" provisions[6] are beyond congressional power to regulate interstate commerce because they are "directed at facets of surface coal mining which have no substantial and adverse effect on interstate commerce." Id., at 460. The court reached this conclusion by examining statistics in the Report of the Interagency Task Force on the Issue of a Moratorium or a Ban on Mining in Prime Agricultural Lands (1977) (Interagency Report).[7] These statistics compared *322 the prime farmland acreage being disturbed annually by surface mining to the total prime farmland acreage in the United States. The Interagency Report stated that approximately 21,800 acres of prime farmland were being disturbed annually and that this acreage amounted to 0.006% of the total prime farmland acreage in the Nation. 501 F. Supp., at 459. This statistic and others derived from it, together with similar comparisons for Indiana, persuaded the court that surface coal mining on prime farmland has "an infinitesimal effect or trivial impact on interstate commerce." Id., at 458.[8]
With respect to the other 15 substantive provisions which apply to surface mining generally,[9] the District Court reasoned *323 that the only possible adverse effects on interstate commerce justifying congressional action are air and water pollution and determined that these effects are adequately addressed by other provisions of the Act. The court therefore concluded that these 15 provisions as well as the 6 prime farmland provisions "are not directed at the alleviation of water or air pollution, to the extent that there are [any] such effects, and are not means reasonably and plainly adapted to [the legitimate end of] removing any substantial and adverse effect on interstate commerce." Id., at 461. We find both of the District Court's rationales untenable.
It is established beyond peradventure that "legislative Acts adjusting the burdens and benefits of economic life come to the Court with a presumption of constitutionality . . . ." Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15 (1976). See also Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 83-84 (1978). A court may invalidate legislation enacted under the Commerce Clause only if it is clear that there is no rational basis for a congressional finding that the regulated activity affects interstate commerce, *324 or that there is no reasonable connection between the regulatory means selected and the asserted ends. Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., ante, at 276; Katzenbach v. McClung, 379 U.S. 294, 303-304 (1964); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 258, 262 (1964). We are not convinced that the District Court had reliable grounds to reach either conclusion in this case.
In our view, Congress was entitled to find that the protection of prime farmland is a federal interest that may be addressed through Commerce Clause legislation. The Inter-agency Report provides no basis for the District Court's contrary view. That report dealt only with the question whether a complete moratorium or ban on surface coal mining on prime farmland was advisable as a matter of policy. The report neither purported to examine the full impact of surface mining on interstate commerce in agricultural commodities, nor concluded that the impact is too negligible to warrant federal regulation.[10] More important, the court below incorrectly assumed that the relevant inquiry under the rational-basis test is the volume of commerce actually affected by the regulated activity. This Court held in NLRB v. Fainblatt, 306 U.S. 601, 606 (1939), that "[t]he power of Congress to regulate interstate commerce is plenary and extends to all such commerce be it great or small." The pertinent inquiry therefore is not how much commerce is involved but whether Congress could rationally conclude that the regulated activity affects interstate commerce. See *325 Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., ante, at 276-277; Perez v. United States, 402 U.S. 146, 154-156 (1971); Katzenbach v. McClung, supra, at 303-304; Wickard v. Filburn, 317 U.S. 111, 127-129 (1942). Cf. Polish National Alliance v. NLRB, 322 U.S. 643, 648 (1944); United States v. Darby, 312 U.S. 100, 123 (1941).[11]
Against this background, we have little difficulty in concluding that the congressional finding in this case satisfies the rational-basis test. The Senate considered information from the Interagency Report about the prime farmland acreage that might be affected by surface coal mining. See 123 Cong. Rec. 15713 (1977) (remarks of Sen. Percy). In addition, Senator Percy called the Senate's attention to testimony presented at the Senate Committee hearings about the losses in agricultural productivity attributable to surface mining.[12]Id., at 15713-15717. See also id., at 15720-15721 (remarks of Sen. Humphrey), 15721 (remarks of Sen. Stevenson). Similar evidence was presented during the contemporaneous hearings before the House Committee,[13] and the Committee *326 Report referred to this testimony in explaining the origins of the "prime farmland" provisions. The Report stated:
"The Committee heard testimony from citizens and local officials of Illinois and Indiana requesting that special attention be given in the bill to the protection of prime agricultural lands. Working with officials of the Soil Conservation Service, the Committee added a number of provisions to H. R. 2 designed to insure the proper reconstruction of soil strata within those areas classified as prime agricultural lands." H. R. Rep. No. 95-218, p. 184 (1977).
In our judgment, the evidence summarized in the Reports mandates the conclusion that Congress had a rational basis for finding that surface coal mining on prime farmland affects interstate commerce in agricultural products. As we explained in Stafford v. Wallace, 258 U.S. 495, 521 (1922):
"Whatever amounts to more or less constant practice, and threatens to obstruct or unduly to burden the freedom of interstate commerce is within the regulatory power of Congress under the commerce clause, and it is primarily for Congress to consider and decide the fact of danger and meet it. This court will certainly not substitute its judgment for that of Congress unless the relation of the subject to interstate commerce and its effect upon it are clearly non-existent."
The court below improperly substituted its judgment for the congressional determination.[14]
*327 We also conclude that the court below erred in holding that the prime farmland and 15 other substantive provisions challenged by appellees are not reasonably related to the legitimate goal of protecting interstate commerce from adverse effects attributable to surface coal mining. The court incorrectly assumed that the Act's goals are limited to preventing air and water pollution. As we noted in Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., ante, at 277-280, Congress was also concerned about preserving the productive capacity of mined lands and protecting the public from health and safety hazards that may result from surface coal mining. All the provisions invalidated by the court below are reasonably calculated to further these legitimate goals.[15]
For example, the approximate-original-contour requirement in § 515 (b) (5) is designed to avoid the environmental and other harm that may result from unreclaimed or improperly restored mining cuts.[16] As the Senate Committee Report explained:
"If surface mining and reclamation are not done carefully, *328 significant environmental damage can result. In addition, unreclaimed or improperly reclaimed surface coal mines pose a continuing threat to the environment, and at times are a danger to public health and safety, public or private property." S. Rep. No. 95-128, p. 50 (1977).
See also id., at 83; H. R. Rep. No. 95-218, supra, at 79-80, 93. The same is true of § 508's requirement that applicants for surface mining permits under the permanent program must inform the regulatory authority of the intended postmining use for the land and the manner in which such use will be achieved. This requirement was among the remedial actions specifically recommended to the House Committee by the United States Army Corps of Engineers. The Corps recommended "[a]dvanced submission of mining and reclamation plans to a responsible government agency having authority to grant or deny approval to engage in mining, based upon the information in the plans and the requirements of the regulations." House Hearings, pt. 2, at 86. These requirements obviously enable the regulatory authority to ascertain, before mining begins, whether the prospective mine operator has given adequate consideration to the postmining fate of the land, and whether the operator possesses the technological capability to restore the land in the manner proposed.
Similarly, the relevance of the topsoil-replacement requirement in § 515 (b) (5) to the congressional goal of preserving the productive capacity of mined land should be self-evident. See H. R. Rep. No. 95-218, supra, at 106-109. Again, this measure was included among the Corps of Engineers' recommendations *329 to the House Committee. The Corps spokesman advised the Committee to require "[s]egregation and preservation of topsoils during, or preceding, mining operations . . . [in order] to provide soil conditions conducive to rapid revegetation after mining . . . ." House Hearings, pt. 2, at 86. Section 522 (e)'s prohibition against mining near churches, schools, parks, public buildings, and occupied dwellings is plainly directed toward ensuring that surface coal mining does not endanger life and property in coal mining communities.
Congress adopted the Surface Mining Act in order to ensure that production of coal for interstate commerce would not be at the expense of agriculture, the environment, or public health and safety, injury to any of which interests would have deleterious effects on interstate commerce. See 30 U.S. C. § 1202 (f) (1976 ed., Supp. III); S. Rep. No. 95-128, supra, at 49-53; H. R. Rep. No. 95-218, supra, at 57-60. Moreover, as noted in Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., ante, at 281-282, the Act reflects the congressional goal of protecting mine operators in States adhering to high performance and reclamation standards from disadvantageous competition with operators in States with less rigorous regulatory programs. See 30 U.S. C. § 1201 (g) (1976 ed., Supp. III). The statutory provisions invalidated by the District Court advance these legitimate goals, and we conclude that Congress acted reasonably in adopting the regulatory scheme contained in the Act.[17]
*330 III
The District Court also held that the 21 substantive statutory provisions discussed above violate the Tenth Amendment because they constitute "displacement or regulation of the management structure and operation of the traditional governmental function of the States in the area of land use control and planning . . . ." 501 F. Supp., at 468. The District Court ruled that the real purpose and effect of the Act is land-use regulation, which, in the court's view, is a traditional state governmental function. The court below, like the District Court in Virginia Surface Mining, relied for its Tenth Amendment analysis on this Court's decision in National League of Cities v. Usery, 426 U.S. 833 (1976).
For the reasons stated in our opinion in Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., ante, at 286-293, we hold that the District Court erred in concluding that the challenged provisions of the Act contravene the Tenth Amendment. Like the provisions challenged in Virginia Surface Mining, the sections of the Act under attack in this case regulate only the activities of surface mine operators who are private individuals and businesses, and the District Court's conclusion that the Act directly regulates the States as States is untenable. This Court's decision in National League of Cities simply is not applicable to this case.[18]
*331 The District Court next held that the prime farmland and approximate-original-contour provisions of the Act violate the equal protection and substantive due process guarantees of the Fifth Amendment. The court noted that the Act makes no allowance for variances from the prime farmland requirements, and that variances from the approximate-original-contour provisions are available only for steep-slope and mountaintop operations. The court reasoned that the absence of a variance procedure from these statutory requirements impermissibly discriminates against coal mine operators and States in the Midwest, where there are significant coal reserves located under prime farmland and few or no steep-slope or mountaintop mining operations. Relying on this Court's decision in Hampton v. Mow Sun Wong, 426 U.S. 88 (1976), the court ruled that this discriminatory treatment could not withstand equal protection scrutiny because it is not justified by "an overriding national interest." 501 F. Supp., at 469. The court further held that both the prime farmland and approximate-original-contour provisions "constitute a deprivation of substantive due process" because they are "irrational, arbitrary and capricious requirements in situations where they are not reasonably necessary to achieve a particular postmining use . . . ." Ibid.
Although its decision was couched in terms of the arbitrariness of the challenged provisions, we fear that the court below did no more than substitute its policy judgment for that of Congress. Social and economic legislation like the Surface Mining Act that does not employ suspect classifications or impinge on fundamental rights must be upheld against equal protection attack when the legislative means are rationally related to a legitimate governmental purpose. Schweiker v. Wilson, 450 U.S. 221 (1981); U. S. Railroad Retirement Board v. Fritz, 449 U.S. 166 (1980). Moreover, such legislation carries with it a presumption of rationality *332 that can only be overcome by a clear showing of arbitrariness and irrationality. Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U. S., at 83; Usery v. Turner Elkhorn Mining Co., 428 U. S., at 15. As the Court explained in Vance v. Bradley, 440 U.S. 93, 97 (1979), social and economic legislation is valid unless "the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that [a court] can only conclude that the legislature's actions were irrational." This is a heavy burden, and appellees have not carried it.
Neither the court below nor appellees have identified any instance in which the prime farmland or approximate-original-contour provisions have been applied to a mining operation so as to produce an irrational or arbitrary result. More important, even were appellees correct that the challenged provisions impose a greater burden on mine operators in the Midwest, that is no basis for finding the provisions unconstitutional. A claim of arbitrariness cannot rest solely on a statute's lack of uniform geographic impact. Secretary of Agriculture v. Central Roig Refining Co., 338 U.S. 604, 616-619 (1950); Currin v. Wallace, 306 U.S. 1, 14 (1939). As the Court explained in Central Roig Refining Co., supra, at 616:
"Nor does the Commerce Clause impose requirements of geographic uniformity . . . . Congress may devise . . . a national policy with due regard for the varying and fluctuating interests of different regions."
The characteristics of surface coal mining obviously will vary according to the different geographical conditions present in affected States. Congress has determined that the measures appropriate for steep-slope mines are not necessarily desirable in flatter terrain and prime farmland areas. In allowing variances from the approximate-original-contour requirement applicable to steep-slope mines. Congress may have been influenced by the relative shortage of level land in the steepslope *333 areas of the country which does not exist in the flatter terrain areas of the Midwest. Similarly, Congress presumably concluded that allowing variances from the prime farmland provisions would undermine the effort to preserve the productivity of such lands. In our view, Congress acted rationally in drawing these distinctions, and the fact that a particular State has more of one kind of mining operation than another does not establish impermissible discrimination under the Fifth Amendment's Due Process Clause. Furthermore, by invalidating the challenged provisions of the Act under the rubric of "substantive due process," the District Court essentially acted as a superlegislature, passing on the wisdom of congressional policy determinations. In so doing, the court exceeded its proper role. See New Orleans v. Dukes, 427 U.S. 297, 303 (1976); Ferguson v. Skrupa, 372 U.S. 726, 730 (1963).
V
As did its counterpart in Virginia Surface Mining, the District Court here ruled that some of the Act's provisions take private property without just compensation in violation of the Fifth Amendment. The court found fault with three of the prime farmland provisions. One is the provision requiring an operator seeking a permit for mining on such land to show that he has the capacity to restore the land, within a reasonable time after the completion of mining, to at least the productivity levels of "non-mined prime farmland in the surrounding area under equivalent levels of management . . . ." § 510 (d) (1), 30 U.S. C. § 1260 (d) (1) (1976 ed., Supp. III). The second provision conditions the release of a mine operator's performance bound on the completion of this restoration. § 519 (c) (2), 30 U.S. C. § 1269 (c) (2) (1976 ed., Supp. III). The third provision directs mine operators to include information about the premining productivity of the land in the reclamation plans they file as part of "prime farmland" permit applications. § 508 (a) (2), 30 *334 U. S. C. § 1258 (a) (2) (1976 ed., Supp. III). The District Court concluded that these three provisions effect an unconstitutional taking of private property because, in the court's view,
"it is technologically impossible to reclaim prime farmland in a postmining period so that equal or higher levels of yield under high levels of management practice can be achieved." 501 F. Supp., at 470.
The court also ruled that the requirement in § 522 of a procedure for designating areas unsuitable for mining operations, as well as § 522 (e)'s proscription of mining on certain lands and near particular structures, takes private property without just compensation.
In this case as in Virginia Surface Mining, appellees' takings claims do not focus on any particular properties to which the challenged provisions have been applied. Similarly, the District Court's ruling did not pertain to the taking of a particular piece of property or the denial of a mining permit for specific prime farmland operations proposed by appellees.[19] Thus, this case resembles Virginia Surface Mining in that the only issue properly before the District Court was whether "mere enactment" of the Surface Mining Act effected *335 an unconstitutional taking of private property. For the reasons discussed more fully in Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., ante, at 294-297, we conclude that this question must be answered in the negative.
Like the steep-slope provisions reviewed in Virginia Surface Mining, the prime farmland provisions do not prohibit surface mining; they merely regulate the conditions under which the activity may be conducted. The prime farmland provisions say nothing about alternative uses to which prime farmland may be put since they come into play only when an operator seeks to conduct mining operations on the land. We therefore conclude that these provisions do not, on their face, deprive a property owner of economically beneficial use of his property.[20]
VI
The court below joined the Virginia Surface Mining District Court in holding that the Act's civil penalty provisions deprive coal mine operators of their right to due process. However, like their counterparts in Virginia Surface Mining, appellees have made no showing that they were ever assessed civil penalties under the Act, much less that the statutory prepayment requirement was ever applied to them or caused *336 them any injury. As in Virginia Surface Mining, we hold that appellees' challenge to these provisions is premature.
VII
Our review of the questions presented by this case leads us to the same conclusion that we reached in Virginia Surface Mining. The Surface Mining Act is not vulnerable to appellees' pre-enforcement constitutional challenge. Accordingly, we reverse the judgment of the District Court and remand the case to that court with instructions to dissolve the injunction entered against the Secretary, and for further proceedings consistent with this opinion.
So ordered.
| This appeal, like Hodel v. Virginia Surface Mining & Reclamation Assn., ante, p. 264, also decided today, involves a broad constitutional challenge to numerous important provisions of the Surface Mining Control and Reclamation Act of 17, 30 U.S. C. 1201 et seq. (16 ed., Supp. III) (Surface Mining Act or Act). Many of the specific provisions attacked in this case, however, differ from the "steepslope" provisions that were the primary focus of the challenge in Virginia Surface Mining. The United States District Court for the Southern District of Indiana ruled that the provisions of the Act challenged here are unconstitutional and permanently enjoined their enforcement. We noted probable jurisdiction sub nom. and we now reverse. I A The basic structure of the Surface Mining Act is described in Hodel v. Virginia Surface Mining & Reclamation Assn., *318 ante, at 268-272, and it will therefore suffice here to briefly describe the specific provisions drawn into question in this case. Several of the challenged sections of the Act are known collectively as the "prime farmland" provisions. These sections establish special requirements for surface mining operations conducted on land that both qualifies as prime farmland under a definition promulgated by the Secretary of Agriculture and has historically been used as cropland within the meaning of the regulations of the Secretary of the Interior (Secretary) implementing the Surface Mining Act. 701 (20), 30 U.S. C. 1291 (20) (16 ed., Supp. III).[1] A permit for surface coal mining on such lands may be granted only if the mine operator can demonstrate its "technological capability to restore such mined area, within a reasonable time, to equivalent or higher levels of yield as nonmined prime farmland in the surrounding area under equivalent levels of management" 510 (d) (1), 30 U.S. C. 1260 (d) (1) (16 ed., Supp. III). The operator must also show *319 that it can "meet the soil reconstruction standards" for prime farmland set forth in 5 (b) (7), 30 U.S. C. 1265 (b) (7) (16 ed., Supp. III). That section specifies that the distinct soil layers on prime farmland must be separately removed, segregated, stockpiled, and then properly replaced and regraded. Furthermore, 519 (c) (2), 30 U.S. C. 1269 (c) (2) (16 ed., Supp. III), provides that upon its completion of mining activities on prime farmland, a mine operator can have its performance bond released only on a showing that soil productivity "has returned to equivalent levels of yield as nonmined land of the same soil type in the surrounding area under equivalent management practices"[2] Also challenged here are some of the Act's more general provisions that are applicable throughout the country. These include 5 (b) (3), which requires restoration of mined land to its approximate original contour,[3] and the directive in 5 (b) (5), 30 U.S. C. 1265 (b) (5) (16 ed., Supp. III), that surface mine operators remove topsoil separately during mining activities and preserve it for use during reclamation if it is not to be replaced immediately on the backfill area of the mining cut. Section 508, 30 U.S. C. 1258 (16 ed., Supp. III), requires applicants for surface coal mining permits to submit proposed reclamation plans specifying the intended postmining use of the land and the method by which that use will be achieved. In addition, 522 (c), (d), 30 U.S. C. 1272 (c), (d) (16 ed., Supp. III), require States wishing to assume permanent *320 regulatory authority over surface coal mining to establish an administrative procedure for determining whether particular lands are unsuitable for some or all kinds of surface mining.[4] Section 522 (e), 30 U.S. C. 1272 (e) (16 ed., Supp. III), proscribes mining activity within 100 feet of roadways and cemeteries or within 300 feet of public buildings, schools, churches, public parks, or occupied dwellings. Finally, the Act's procedures for collecting proposed civil penalties contained in 518 (c), 30 U.S. C. 1268 (c) (16 ed., Supp. III), are also drawn into question here. B These suits were filed in August 18, one by the State of Indiana and several of its officials, and the other by the Indiana Coal Association, several coal mine operators, and others. The complaints alleged that the Act contravenes the Commerce Clause, the equal protection and due process guarantees of the Due Process Clause of the Fifth Amendment, the Tenth Amendment, and the Just Compensation Clause of the Fifth Amendment. The District Court held a 1-day hearing on plaintiffs' motion for a preliminary injunction and defendants' motion to dismiss, and the court ultimately decided the case on the merits without taking further evidence. On June 10, the District Court issued an order and opinion sustaining each of plaintiffs' constitutional challenges and permanently enjoining the Secretary from enforcing the challenged sections of the Act.[5] *321 II The District Court gave two rationales for its decision on the Commerce Clause issue. The court first held that the six "prime farmland" provisions[6] are beyond congressional power to regulate interstate commerce because they are "directed at facets of surface coal mining which have no substantial and adverse effect on interstate commerce." The court reached this conclusion by examining statistics in the Report of the Interagency Task Force on the Issue of a Moratorium or a Ban on Mining in Prime Agricultural Lands (17) (Interagency Report).[7] These statistics compared *322 the prime farmland acreage being disturbed annually by surface mining to the total prime farmland acreage in the United States. The Interagency Report stated that approximately 21,800 acres of prime farmland were being disturbed annually and that this acreage amounted to 0.006% of the total prime farmland acreage in the Nation. This statistic and others derived from it, together with similar comparisons for Indiana, persuaded the court that surface coal mining on prime farmland has "an infinitesimal effect or trivial impact on interstate commerce."[8] With respect to the other substantive provisions which apply to surface mining generally,[9] the District Court reasoned *323 that the only possible adverse effects on interstate commerce justifying congressional action are air and water pollution and determined that these effects are adequately addressed by other provisions of the Act. The court therefore concluded that these provisions as well as the 6 prime farmland provisions "are not directed at the alleviation of water or air pollution, to the extent that there are [any] such effects, and are not means reasonably and plainly adapted to [the legitimate end of] removing any substantial and adverse effect on interstate commerce." We find both of the District Court's rationales untenable. It is established beyond peradventure that "legislative Acts adjusting the burdens and benefits of economic life come to the Court with a presumption of constitutionality" See also Duke Power A court may invalidate legislation enacted under the Commerce Clause only if it is clear that there is no rational basis for a congressional finding that the regulated activity affects interstate commerce, *324 or that there is no reasonable connection between the regulatory means selected and the asserted ends. Hodel v. Virginia Surface Mining & Reclamation Assn., ante, at 276; ; Heart of Atlanta Motel, We are not convinced that the District Court had reliable grounds to reach either conclusion in this case. In our view, Congress was entitled to find that the protection of prime farmland is a federal interest that may be addressed through Commerce Clause legislation. The Inter-agency Report provides no basis for the District Court's contrary view. That report dealt only with the question whether a complete moratorium or ban on surface coal mining on prime farmland was advisable as a matter of policy. The report neither purported to examine the full impact of surface mining on interstate commerce in agricultural commodities, nor concluded that the impact is too negligible to warrant federal regulation.[10] More important, the court below incorrectly assumed that the relevant inquiry under the rational-basis test is the volume of commerce actually affected by the regulated activity. This Court held in that "[t]he power of Congress to regulate interstate commerce is plenary and extends to all such commerce be it great or small." The pertinent inquiry therefore is not how much commerce is involved but whether Congress could rationally conclude that the regulated activity affects interstate commerce. See *325 Hodel v. Virginia Surface Mining & Reclamation Assn., ante, at 276-277; 4-6 ; at ; Cf. Polish National ; United[11] Against this background, we have little difficulty in concluding that the congressional finding in this case satisfies the rational-basis test. The Senate considered information from the Interagency Report about the prime farmland acreage that might be affected by surface coal mining. See Cong. Rec. 713 (17) (remarks of Sen. Percy). In addition, Senator Percy called the Senate's attention to testimony presented at the Senate Committee hearings about the losses in agricultural productivity attributable to surface mining.[12] at 713-717. See also at 720-721 721 (remarks of Sen. Stevenson). Similar evidence was presented during the contemporaneous hearings before the House Committee,[13] and the Committee *326 Report referred to this testimony in explaining the origins of the "prime farmland" provisions. The Report stated: "The Committee heard testimony from citizens and local officials of Illinois and Indiana requesting that special attention be given in the bill to the protection of prime agricultural lands. Working with officials of the Soil Conservation Service, the Committee added a number of provisions to H. R. 2 designed to insure the proper reconstruction of soil strata within those areas classified as prime agricultural lands." H. R. Rep. No. p. 184 (17). In our judgment, the evidence summarized in the Reports mandates the conclusion that Congress had a rational basis for finding that surface coal mining on prime farmland affects interstate commerce in agricultural products. As we explained in : "Whatever amounts to more or less constant practice, and threatens to obstruct or unduly to burden the freedom of interstate commerce is within the regulatory power of Congress under the commerce clause, and it is primarily for Congress to consider and decide the fact of danger and meet it. This court will certainly not substitute its judgment for that of Congress unless the relation of the subject to interstate commerce and its effect upon it are clearly non-existent." The court below improperly substituted its judgment for the congressional determination.[] *327 We also conclude that the court below erred in holding that the prime farmland and other substantive provisions challenged by appellees are not reasonably related to the legitimate goal of protecting interstate commerce from adverse effects attributable to surface coal mining. The court incorrectly assumed that the Act's goals are limited to preventing air and water pollution. As we noted in Hodel v. Virginia Surface Mining & Reclamation Assn., ante, at 277-280, Congress was also concerned about preserving the productive capacity of mined lands and protecting the public from health and safety hazards that may result from surface coal mining. All the provisions invalidated by the court below are reasonably calculated to further these legitimate goals.[] For example, the approximate-original-contour requirement in 5 (b) (5) is designed to avoid the environmental and other harm that may result from unreclaimed or improperly restored mining cuts.[16] As the Senate Committee Report explained: "If surface mining and reclamation are not done carefully, *328 significant environmental damage can result. In addition, unreclaimed or improperly reclaimed surface coal mines pose a continuing threat to the environment, and at times are a danger to public health and safety, public or private property." S. Rep. No. p. 50 (17). See also ; H. R. Rep. No. The same is true of 508's requirement that applicants for surface mining permits under the permanent program must inform the regulatory authority of the intended postmining use for the land and the manner in which such use will be achieved. This requirement was among the remedial actions specifically recommended to the House Committee by the United States Army Corps of Engineers. The Corps recommended "[a]dvanced submission of mining and reclamation plans to a responsible government agency having authority to grant or deny approval to engage in mining, based upon the information in the plans and the requirements of the regulations." House Hearings, pt. 2, at 86. These requirements obviously enable the regulatory authority to ascertain, before mining begins, whether the prospective mine operator has given adequate consideration to the postmining fate of the land, and whether the operator possesses the technological capability to restore the land in the manner proposed. Similarly, the relevance of the topsoil-replacement requirement in 5 (b) (5) to the congressional goal of preserving the productive capacity of mined land should be self-evident. See H. R. Rep. No. Again, this measure was included among the Corps of Engineers' recommendations *329 to the House Committee. The Corps spokesman advised the Committee to require "[s]egregation and preservation of topsoils during, or preceding, mining operations [in order] to provide soil conditions conducive to rapid revegetation after mining" House Hearings, pt. 2, at 86. Section 522 (e)'s prohibition against mining near churches, schools, parks, public buildings, and occupied dwellings is plainly directed toward ensuring that surface coal mining does not endanger life and property in coal mining communities. Congress adopted the Surface Mining Act in order to ensure that production of coal for interstate commerce would not be at the expense of agriculture, the environment, or public health and safety, injury to any of which interests would have deleterious effects on interstate commerce. See 30 U.S. C. 1202 (f) (16 ed., Supp. III); S. Rep. No. ; H. R. Rep. No. Moreover, as noted in Hodel v. Virginia Surface Mining & Reclamation Assn., ante, at 281-282, the Act reflects the congressional goal of protecting mine operators in States adhering to high performance and reclamation standards from disadvantageous competition with operators in States with less rigorous regulatory programs. See 30 U.S. C. 1201 (g) (16 ed., Supp. III). The statutory provisions invalidated by the District Court advance these legitimate goals, and we conclude that Congress acted reasonably in adopting the regulatory scheme contained in the Act.[17] *330 III The District Court also held that the 21 substantive statutory provisions discussed above violate the Tenth Amendment because they constitute "displacement or regulation of the management structure and operation of the traditional governmental function of the States in the area of land use control and planning" The District Court ruled that the real purpose and effect of the Act is land-use regulation, which, in the court's view, is a traditional state governmental function. The court below, like the District Court in Virginia Surface Mining, relied for its Tenth Amendment analysis on this Court's decision in National League of For the reasons stated in our opinion in Hodel v. Virginia Surface Mining & Reclamation Assn., ante, at 286-293, we hold that the District Court erred in concluding that the challenged provisions of the Act contravene the Tenth Amendment. Like the provisions challenged in Virginia Surface Mining, the sections of the Act under attack in this case regulate only the activities of surface mine operators who are private individuals and businesses, and the District Court's conclusion that the Act directly regulates the States as States is untenable. This Court's decision in National League of Cities simply is not applicable to this case.[18] *331 The District Court next held that the prime farmland and approximate-original-contour provisions of the Act violate the equal protection and substantive due process guarantees of the Fifth Amendment. The court noted that the Act makes no allowance for variances from the prime farmland requirements, and that variances from the approximate-original-contour provisions are available only for steep-slope and mountaintop operations. The court reasoned that the absence of a variance procedure from these statutory requirements impermissibly discriminates against coal mine operators and States in the Midwest, where there are significant coal reserves located under prime farmland and few or no steep-slope or mountaintop mining operations. Relying on this Court's decision in the court ruled that this discriminatory treatment could not withstand equal protection scrutiny because it is not justified by "an overriding national interest." The court further held that both the prime farmland and approximate-original-contour provisions "constitute a deprivation of substantive due process" because they are "irrational, arbitrary and capricious requirements in situations where they are not reasonably necessary to achieve a particular postmining use" Although its decision was couched in terms of the arbitrariness of the challenged provisions, we fear that the court below did no more than substitute its policy judgment for that of Congress. Social and economic legislation like the Surface Mining Act that does not employ suspect classifications or impinge on fundamental rights must be upheld against equal protection attack when the legislative means are rationally related to a legitimate governmental purpose. ; U. S. Railroad Retirement Moreover, such legislation carries with it a presumption of rationality *332 that can only be overcome by a clear showing of arbitrariness and irrationality. Duke Power 438 U. S., ; 428 U. S., at As the Court explained in social and economic legislation is valid unless "the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that [a court] can only conclude that the legislature's actions were irrational." This is a heavy burden, and appellees have not carried it. Neither the court below nor appellees have identified any instance in which the prime farmland or approximate-original-contour provisions have been applied to a mining operation so as to produce an irrational or arbitrary result. More important, even were appellees correct that the challenged provisions impose a greater burden on mine operators in the Midwest, that is no basis for finding the provisions unconstitutional. A claim of arbitrariness cannot rest solely on a statute's lack of uniform geographic impact. Secretary of Agriculture v. Central Roig Refining ; As the Court explained in Central Roig Refining at 616: "Nor does the Commerce Clause impose requirements of geographic uniformity Congress may devise a national policy with due regard for the varying and fluctuating interests of different regions." The characteristics of surface coal mining obviously will vary according to the different geographical conditions present in affected States. Congress has determined that the measures appropriate for steep-slope mines are not necessarily desirable in flatter terrain and prime farmland areas. In allowing variances from the approximate-original-contour requirement applicable to steep-slope mines. Congress may have been influenced by the relative shortage of level land in the steepslope *333 areas of the country which does not exist in the flatter terrain areas of the Midwest. Similarly, Congress presumably concluded that allowing variances from the prime farmland provisions would undermine the effort to preserve the productivity of such lands. In our view, Congress acted rationally in drawing these distinctions, and the fact that a particular State has more of one kind of mining operation than another does not establish impermissible discrimination under the Fifth Amendment's Due Process Clause. Furthermore, by invalidating the challenged provisions of the Act under the rubric of "substantive due process," the District Court essentially acted as a superlegislature, passing on the wisdom of congressional policy determinations. In so doing, the court exceeded its proper role. See New 427 U.S. 2, ; V As did its counterpart in Virginia Surface Mining, the District Court here ruled that some of the Act's provisions take private property without just compensation in violation of the Fifth Amendment. The court found fault with three of the prime farmland provisions. One is the provision requiring an operator seeking a permit for mining on such land to show that he has the capacity to restore the land, within a reasonable time after the completion of mining, to at least the productivity levels of "non-mined prime farmland in the surrounding area under equivalent levels of management" 510 (d) (1), 30 U.S. C. 1260 (d) (1) (16 ed., Supp. III). The second provision conditions the release of a mine operator's performance bound on the completion of this restoration. 519 (c) (2), 30 U.S. C. 1269 (c) (2) (16 ed., Supp. III). The third provision directs mine operators to include information about the premining productivity of the land in the reclamation plans they file as part of "prime farmland" permit applications. 508 (2), 30 *334 U. S. C. 1258 (2) (16 ed., Supp. III). The District Court concluded that these three provisions effect an unconstitutional taking of private property because, in the court's view, "it is technologically impossible to reclaim prime farmland in a postmining period so that equal or higher levels of yield under high levels of management practice can be achieved." The court also ruled that the requirement in 522 of a procedure for designating areas unsuitable for mining operations, as well as 522 (e)'s proscription of mining on certain lands and near particular structures, takes private property without just compensation. In this case as in Virginia Surface Mining, appellees' takings claims do not focus on any particular properties to which the challenged provisions have been applied. Similarly, the District Court's ruling did not pertain to the taking of a particular piece of property or the denial of a mining permit for specific prime farmland operations proposed by appellees.[19] Thus, this case resembles Virginia Surface Mining in that the only issue properly before the District Court was whether "mere enactment" of the Surface Mining Act effected *335 an unconstitutional taking of private property. For the reasons discussed more fully in Hodel v. Virginia Surface Mining & Reclamation Assn., ante, at 294-2, we conclude that this question must be answered in the negative. Like the steep-slope provisions reviewed in Virginia Surface Mining, the prime farmland provisions do not prohibit surface mining; they merely regulate the conditions under which the activity may be conducted. The prime farmland provisions say nothing about alternative uses to which prime farmland may be put since they come into play only when an operator seeks to conduct mining operations on the land. We therefore conclude that these provisions do not, on their face, deprive a property owner of economically beneficial use of his property.[20] VI The court below joined the Virginia Surface Mining District Court in holding that the Act's civil penalty provisions deprive coal mine operators of their right to due process. However, like their counterparts in Virginia Surface Mining, appellees have made no showing that they were ever assessed civil penalties under the Act, much less that the statutory prepayment requirement was ever applied to them or caused *336 them any injury. As in Virginia Surface Mining, we hold that appellees' challenge to these provisions is premature. VII Our review of the questions presented by this case leads us to the same conclusion that we reached in Virginia Surface Mining. The Surface Mining Act is not vulnerable to appellees' pre-enforcement constitutional challenge. Accordingly, we reverse the judgment of the District Court and remand the case to that court with instructions to dissolve the injunction entered against the Secretary, and for further proceedings consistent with this opinion. So ordered. |
Justice Thomas | dissenting | false | Harris v. United States | 2002-06-24T00:00:00 | null | https://www.courtlistener.com/opinion/121164/harris-v-united-states/ | https://www.courtlistener.com/api/rest/v3/clusters/121164/ | 2,002 | 2001-076 | 1 | 5 | 4 | The range of punishment to which petitioner William J. Harris was exposed turned on the fact that he brandished a firearm, a fact that was neither charged in his indictment nor proved at trial beyond a reasonable doubt. The United States Court of Appeals for the Fourth Circuit nonetheless held, in reliance on McMillan v. Pennsylvania, 477 U.S. 79 (1986), that the fact that Harris brandished a firearm was a mere sentencing factor to which no constitutional protections attach. 243 F.3d 806, 808-812 (2001).
McMillan, however, conflicts with the Court's later decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), as the dissenting opinion in Apprendi recognized. See id., at 533 (O'Connor, J., dissenting). The Court's holding today therefore rests on either a misunderstanding or a rejection of the very principles that animated Apprendi just two years ago. Given that considerations of stare decisis are at their nadir in cases involving procedural rules implicating fundamental constitutional protections afforded criminal defendants, *573 I would reaffirm Apprendi, overrule McMillan, and reverse the Court of Appeals.
I
Harris was indicted for distributing marijuana in violation of 21 U.S. C. § 841 and for carrying a firearm "in relation to" a drug trafficking crime in violation of 18 U.S. C. § 924(c)(1)(A). Harris pleaded guilty to distributing marijuana but disputed that he had carried a firearm "in relation to" a drug trafficking crime. The District Court disagreed,[1] and he was convicted by the judge, having waived his right to trial by jury. Although the mandatory minimum prison sentence under § 924(c)(1)(A)(i) is five years in prison, the presentence report relied on § 924(c)(1)(A)(ii), which increases the mandatory minimum prison sentence to seven years when the firearm is brandished.[2] At sentencing, the District Court acknowledged that it was a "close question" whether Harris "brandished" a firearm, and noted that "[t]he only thing that happened here is [that] he had [a gun] during the drug transaction." App. 231-232, 244-247. The District Court nonetheless found by a preponderance of the evidence that Harris had brandished a firearm and as a result sentenced him to the minimum mandatory sentence of seven years' imprisonment for the violation of § 924(c)(1)(A).
Relying on McMillan, the Court of Appeals affirmed the sentence and held as a matter of statutory interpretation that brandishing is a sentencing factor, not an element of the § 924(c)(1)(A) offense. Accordingly, the Court of Appeals *574 concluded that the allegation of brandishing a firearm did not need to be charged in the indictment or proved beyond a reasonable doubt in order for the 7-year mandatory minimum to be triggered.
II
The Court construes § 924(c)(1)(A) to "defin[e] a single offense," ante, at 556, rather than the multiple offenses the Court found in a similarly structured statute in Jones v. United States, 526 U.S. 227 (1999).[3] In reliance on McMillan, it then discounts the increasing mandatory minimum sentences set forth in the statutory provision as constitutionally irrelevant. In the plurality's view, any punishment less than the statutory maximum of life imprisonment for any violation of § 924(c)(1)(A) avoids the single principle the Court now gleans from Apprendi: "`Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum,' whether the statute calls it an element or a sentencing factor, `must be submitted to a jury, and proved beyond a reasonable doubt.' " Ante, at 550 (quoting Apprendi, supra, at 490). According to the plurality, the historical practices underlying the Court's decision in Apprendi with respect to penalties that exceed the statutory maximum do not support extension of Apprendi `s rule to facts that increase a defendant's mandatory minimum sentence. Such fine distinctions with regard to vital constitutional liberties cannot withstand close scrutiny.
A
The Federal Constitution provides those "accused" in federal courts with specific rights, such as the right "to be informed of the nature and cause of the accusation," the right to be "held to answer for a capital, or otherwise infamous crime" only on an indictment or presentment of a grand jury, and the right to be tried by "an impartial jury of the State *575 and district wherein the crime shall have been committed." Amdts. 5 and 6. Also, no Member of this Court disputes that due process requires that every fact necessary to constitute a crime must be found beyond a reasonable doubt by a jury if that right is not waived. See In re Winship, 397 U.S. 358, 364 (1970). As with Apprendi, this case thus turns on the seemingly simple question of what constitutes a "crime."
This question cannot be answered by reference to statutory construction alone solely because the sentence does not exceed the statutory maximum. As I discussed at great length in Apprendi, the original understanding of what facts are elements of a crime was expansive:
"[I]f the legislature defines some core crime and then provides for increasing the punishment of that crime upon a finding of some aggravating factof whatever sort, including the fact of a prior convictionthe core crime and the aggravating fact together constitute an aggravated crime, just as much as grand larceny is an aggravated form of petit larceny. The aggravating fact is an element of the aggravated crime. Similarly, if the legislature, rather than creating grades of crimes, has provided for setting the punishment of a crime based on some fact . . . that fact is also an element. No multifactor parsing of statutes, of the sort that we have attempted since McMillan, is necessary. One need only look to the kind, degree, or range of punishment to which the prosecution is by law entitled for a given set of facts. Each fact for that entitlement is an element." 530 U.S., at 501 (concurring opinion).
The fact that a defendant brandished a firearm indisputably alters the prescribed range of penalties to which he is exposed under 18 U.S. C. § 924(c)(1)(A). Without a finding that a defendant brandished or discharged a firearm, the penalty range for a conviction under § 924(c)(1)(A)(i) is five *576 years to life in prison. But with a finding that a defendant brandished a firearm, the penalty range becomes harsher, seven years to life imprisonment. § 924(c)(1)(A)(ii). And if the court finds that a defendant discharged a firearm, the range becomes even more severe, 10 years to life. § 924(c)(1)(A)(iii). Thus, it is ultimately beside the point whether as a matter of statutory interpretation brandishing is a sentencing factor, because as a constitutional matter brandishing must be deemed an element of an aggravated offense. See Apprendi, supra, at 483, n. 10 ("[F]acts that expose a defendant to a punishment greater than that otherwise legally prescribed were by definition `elements' of a separate legal offense").
I agree with the Court that a legislature is free to decree, within constitutional limits, which facts are elements that constitute a crime. See ante, at 550. But when the legislature provides that a particular fact shall give rise "`both to a special stigma and to a special punishment,' " ante, at 560 (plurality opinion) (quoting McMillan, 477 U. S., at 103 (Stevens, J., dissenting)), the constitutional consequences are clear. As the Court acknowledged in Apprendi, society has long recognized a necessary link between punishment and crime, 530 U.S., at 478 ("The defendant's ability to predict with certainty the judgment from the face of the felony indictment flowed from the invariable linkage of punishment with crime"). This link makes a great deal of sense: Why, after all, would anyone care if they were convicted of murder, as opposed to manslaughter, but for the increased penalties for the former offense, which in turn reflect the greater moral opprobrium society attaches to the act? We made clear in Apprendi that if a statute "`annexes a higher degree of punishment' " based on certain circumstances, exposing a defendant to that higher degree of punishment requires that those circumstances be charged in the indictment and proved beyond a reasonable doubt. Id., at 480 (quoting J. Archbold, Pleading and Evidence in Criminal Cases 51 (15th ed. 1862)).
*577 This constitutional limitation neither interferes with the legislature's ability to define statutory ranges of punishment nor calls into question judicial discretion to impose "judgment within the range prescribed by statute." Apprendi, 530 U. S., at 481. But it does protect the criminal defendant's constitutional right to know, ex ante, those circumstances that will determine the applicable range of punishment and to have those circumstances proved beyond a reasonable doubt:
"If a defendant faces punishment beyond that provided by statute when an offense is committed under certain circumstances but not others, it is obvious that both the loss of liberty and the stigma attaching to the offense are heightened; it necessarily follows that the defendant should notat the moment the State is put to proof of those circumstancesbe deprived of protections that have, until that point, unquestionably attached." Id., at 484.
B
The Court truncates this protection and holds that "facts, sometimes referred to as sentencing factors," do not need to be "alleged in the indictment, submitted to the jury, or established beyond a reasonable doubt," ante, at 550, so long as they do not increase the penalty for the crime beyond the statutory maximum. This is so even if the fact alters the statutorily mandated sentencing range, by increasing the mandatory minimum sentence. But to say that is in effect to claim that the imposition of a 7-year, rather than a 5-year, mandatory minimum does not change the constitutionally relevant sentence range because, regardless, either sentence falls between five years and the statutory maximum of life, the longest sentence range available under the statute. This analysis is flawed precisely because the statute provides incremental sentencing ranges, in which the mandatory minimum sentence varies upward if a defendant "brandished" or "discharged" a weapon. As a matter of common sense, an *578 increased mandatory minimum heightens the loss of liberty and represents the increased stigma society attaches to the offense. Consequently, facts that trigger an increased mandatory minimum sentence warrant constitutional safeguards.
Actual sentencing practices appear to bolster this conclusion. The suggestion that a 7-year sentence could be imposed even without a finding that a defendant brandished a firearm ignores the fact that the sentence imposed when a defendant is found only to have "carried" a firearm "in relation to" a drug trafficking offense appears to be, almost uniformly, if not invariably, five years. Similarly, those found to have brandished a firearm typically, if not always, are sentenced only to 7 years in prison while those found to have discharged a firearm are sentenced only to 10 years. Cf. United States Sentencing Commission, 2001 Datafile, USSCFY01, Table 1 (illustrating that almost all persons sentenced for violations of 18 U.S. C. § 924(c)(1)(A) are sentenced to 5, 7, or 10 years' imprisonment). This is true even though anyone convicted of violating § 924(c)(1)(A) is theoretically eligible to receive a sentence as severe as life imprisonment.[4] Yet under the decision today, those key facts actually responsible for fixing a defendant's punishment need not be charged in an indictment or proved beyond a reasonable doubt.
The incremental increase between five and seven years in prison may not seem so great in the abstract (of course it must seem quite different to a defendant actually being incarcerated). However, the constitutional analysis adopted by the plurality would hold equally true if the mandatory *579 minimum for a violation of § 924(c)(1) without brandishing was five years, but the mandatory minimum with brandishing was life imprisonment. The result must be the same because surely our fundamental constitutional principles cannot alter depending on degrees of sentencing severity. So long as it was clear that Congress intended for "brandishing" to be a sentencing factor, that fact would still have to be neither charged in the indictment nor proved beyond a reasonable doubt. But if this is the case, then Apprendi can easily be avoided by clever statutory drafting.
It is true that Apprendi concerned a fact that increased the penalty for a crime beyond the prescribed statutory maximum, but the principles upon which it relied apply with equal force to those facts that expose the defendant to a higher mandatory minimum: When a fact exposes a defendant to greater punishment than what is otherwise legally prescribed, that fact is "by definition [an] `elemen[t]' of a separate legal offense." 530 U.S., at 483, n. 10. Whether one raises the floor or raises the ceiling it is impossible to dispute that the defendant is exposed to greater punishment than is otherwise prescribed.
This is no less true because mandatory minimum sentences are a 20th-century phenomena. As the Government acknowledged at oral argument, this fact means only that historical practice is not directly dispositive of the question whether facts triggering mandatory minimums must be treated like elements. Tr. of Oral Arg. 47. The Court has not previously suggested that constitutional protection ends where legislative innovation or ingenuity begins. Looking to the principles that animated the decision in Apprendi and the bases for the historical practice upon which Apprendi rested (rather than to the historical pedigree of mandatory minimums), there are no logical grounds for treating facts triggering mandatory minimums any differently than facts that increase the statutory maximum. In either case the defendant cannot predict the judgment from the face of the *580 felony, see 530 U.S., at 478-479, and the absolute statutory limits of his punishment change, constituting an increased penalty. In either case the defendant must be afforded the procedural protections of notice, a jury trial, and a heightened standard of proof with respect to the facts warranting exposure to a greater penalty. See id., at 490; Jones, 526 U. S., at 253 (Scalia, J., concurring).
III
McMillan rested on the premise that the "`applicability of the reasonable-doubt standard . . . has always been dependent on how a State defines the offense that is charged in any given case.' " 477 U.S., at 85 (quoting Patterson v. New York, 432 U.S. 197, 211, n. 12 (1977)). Thus, it cannot withstand the logic of Apprendi, at least with respect to facts for which the legislature has prescribed a new statutory sentencing range. McMillan broke from the "traditional understanding" of crime definition, a tradition that "continued well into the 20th century, at least until the middle of the century." Apprendi, supra, at 518 (Thomas, J., concurring). The Court in McMillan did not, therefore, acknowledge that the change in the prescribed sentence range upon the finding of particular facts changed the prescribed range of penalties in a constitutionally significant way. Rather, while recognizing applicable due process limits, it concluded that the mandatory minimum at issue did not increase the prescribed range of penalties but merely required the judge to impose a specific penalty "within the range already available to it." 477 U.S., at 87-88. As discussed, supra, at 577-579, this analysis is inherently flawed.
Jones called into question, and Apprendi firmly limited, a related precept underlying McMillan: namely, the State's authority to treat aggravated behavior as a factor increasing the sentence, rather than as an element of the crime. Although the plurality resurrects this principle, see ante, at 559-560, 565, it must do so in the face of the Court's contrary *581 conclusion in Apprendi, which adopts the position taken by the dissent in McMillan: "[I]f a State provides that a specific component of a prohibited transaction shall give rise both to a special stigma and to a special punishment, that component must be treated as a `fact necessary to constitute the crime' within the meaning of our holding in In re Winship. " 477 U.S., at 103 (Stevens, J., dissenting). See Apprendi, supra, at 483-484.
Nor should stare decisis dictate the outcome in this case; the stare decisis effect of McMillan is considerably weakened for a variety of reasons. As an initial matter, where the Court has wrongly decided a constitutional question, the force of stare decisis is at its weakest. See Ring v. Arizona, post, at 608; Agostini v. Felton, 521 U.S. 203, 235 (1997). And while the relationship between punishment and the constitutional protections attached to the elements of a crime traces its roots back to the common law, McMillan was decided only 16 years ago.[5] No Court of Appeals, let alone this Court, has held that Apprendi has retroactive effect. The United States concedes, with respect to prospective application, that it can charge facts upon which a mandatory minimum sentence is based in the indictment and prove them to a jury. Tr. of Oral Arg. 42. Consequently, one is hard pressed to give credence to the plurality's suggestion that "[i]t is critical not to abandon" McMillan "at this late date." Ante, at 567. Rather, it is imperative that the Court maintain absolute fidelity to the protections of the individual afforded *582 by the notice, trial by jury, and beyond-a-reasonabledoubt requirements.
Finally, before today, no one seriously believed that the Court's earlier decision in McMillan could coexist with the logical implications of the Court's later decisions in Apprendi and Jones. In both cases, the dissent said as much:
"The essential holding of McMillan conflicts with at least two of the several formulations the Court gives to the rule it announces today. First, the Court endorses the following principle: `[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt.' Ante, at 490 (emphasis added) (quoting Jones, supra, at 252-253 (Stevens, J.,concurring)). Second, the Court endorses the rule as restated in Justice Scalia's concurring opinion in Jones. See ante, at 490. There, Justice Scalia wrote: `[I]t is unconstitutional to remove from the jury the assessment of facts that alter the congressionally prescribed range of penal- ties to which a criminal defendant is exposed.' Jones, supra, at 253 (emphasis added). Thus, the Court appears to hold that any fact that increases or alters the range of penalties to which a defendant is exposed which, by definition, must include increases or alterations to either the minimum or maximum penalties must be proved to a jury beyond a reasonable doubt. In McMillan, however, we rejected such a rule to the extent it concerned those facts that increase or alter the minimum penalty to which a defendant is exposed. Accordingly, it is incumbent on the Court not only to admit that it is overruling McMillan, but also to explain why such a course of action is appropriate under normal principles of stare decisis. " Apprendi, 530 U. S., at 533 (O'Connor, J., dissenting). *583 See also Jones, 526 U. S., at 268 (Kennedy, J., dissenting) ("[B]y its terms, Justice Scalia's view . . . would call into question the validity of judge-administered mandatory minimum sentencing provisions, contrary to our holding in McMillan. Once the facts triggering application of the mandatory minimum are found by the judge, the sentencing range to which the defendant is exposed is altered"). There is no question but that stare decisis may yield where a prior decision's "underpinnings [have been] eroded, by subsequent decisions of this Court." United States v. Gaudin, 515 U.S. 506, 521 (1995).
Further supporting the essential incompatibility of Apprendi and McMillan, Justice Breyer concurs in the judgment but not the entire opinion of the Court, recognizing that he "cannot easily distinguish Apprendi . . . from this case in terms of logic. For that reason, I cannot agree with the plurality's opinion insofar as it finds such a distinction." Ante, at 569 (opinion concurring in part and concurring in judgment). This leaves only a minority of the Court embracing the distinction between McMillan and Apprendi that forms the basis of today's holding, and at least one Member explicitly continues to reject both Apprendi and Jones. Ante, at 569 (O'Connor, J., concurring).
* * *
"Conscious of the likelihood that legislative decisions may have been made in reliance on McMillan, " in Apprendi, "we reserve[d] for another day the question whether stare decisis considerations preclude reconsideration of its narrower holding." 530 U.S., at 487, n. 13. But that day has come, and adherence to stare decisis in this case would require infidelity to our constitutional values. Because, like most Members of this Court, I cannot logically distinguish the issue here from the principles underlying the Court's decision in Apprendi, I respectfully dissent.
| The range of punishment to which petitioner William J. Harris was exposed turned on the fact that he brandished a firearm, a fact that was neither charged in his indictment nor proved at trial beyond a reasonable doubt. The United States Court of Appeals for the Fourth Circuit nonetheless held, in reliance on that the fact that Harris brandished a firearm was a mere sentencing factor to which no constitutional protections attach. however, conflicts with the Court's later decision in as the dissenting opinion in recognized. See The Court's holding today therefore rests on either a misunderstanding or a rejection of the very principles that animated just two years ago. Given that considerations of stare decisis are at their nadir in cases involving procedural rules implicating fundamental constitutional protections afforded criminal defendants, *573 I would reaffirm overrule and reverse the Court of Appeals. I Harris was indicted for distributing marijuana in violation of 21 U.S. C. 841 and for carrying a firearm "in relation to" a drug trafficking in violation of 18 U.S. C. 924(c)(1)(A). Harris pleaded guilty to distributing marijuana but disputed that he had carried a firearm "in relation to" a drug trafficking The District Court disagreed,[1] and he was convicted by the judge, having waived his right to trial by jury. Although the mandatory minimum prison sentence under 924(c)(1)(A)(i) is five years in prison, the presentence report relied on 924(c)(1)(A)(ii), which increases the mandatory minimum prison sentence to seven years when the firearm is brandished.[2] At sentencing, the District Court acknowledged that it was a "close question" whether Harris "brandished" a firearm, and noted that "[t]he only thing that happened here is [that] he had [a gun] during the drug transaction." App. 231-232, 244-247. The District Court nonetheless found by a preponderance of the evidence that Harris had brandished a firearm and as a result sentenced him to the minimum mandatory sentence of seven years' imprisonment for the violation of 924(c)(1)(A). Relying on the Court of Appeals affirmed the sentence and held as a matter of statutory interpretation that brandishing is a sentencing factor, not an element of the 924(c)(1)(A) offense. Accordingly, the Court of Appeals *574 concluded that the allegation of brandishing a firearm did not need to be charged in the indictment or proved beyond a reasonable doubt in order for the 7-year mandatory minimum to be triggered. II The Court construes 924(c)(1)(A) to "defin[e] a single offense," ante, at 556, rather than the multiple offenses the Court found in a similarly structured statute in[3] In reliance on it then discounts the increasing mandatory minimum sentences set forth in the statutory provision as constitutionally irrelevant. In the plurality's view, any punishment less than the statutory maximum of life imprisonment for any violation of 924(c)(1)(A) avoids the single principle the Court now gleans from : "`Other than the fact of a prior conviction, any fact that increases the penalty for a beyond the prescribed statutory maximum,' whether the statute calls it an element or a sentencing factor, `must be submitted to a jury, and proved beyond a reasonable doubt.' " Ante, at 550 (quoting ). According to the plurality, the historical practices underlying the Court's decision in with respect to penalties that exceed the statutory maximum do not support extension of `s rule to facts that increase a defendant's mandatory minimum sentence. Such fine distinctions with regard to vital constitutional liberties cannot withstand close scrutiny. A The Federal Constitution provides those "accused" in federal courts with specific rights, such as the right "to be informed of the nature and cause of the accusation," the right to be "held to answer for a capital, or otherwise infamous " only on an indictment or presentment of a grand jury, and the right to be tried by "an impartial jury of the State *575 and district wherein the shall have been committed." Amdts. 5 and 6. Also, no Member of this Court disputes that due process requires that every fact necessary to constitute a must be found beyond a reasonable doubt by a jury if that right is not waived. See In re Winship, As with this case thus turns on the seemingly simple question of what constitutes a "." This question cannot be answered by reference to statutory construction alone solely because the sentence does not exceed the statutory maximum. As I at great length in the original understanding of what facts are elements of a was expansive: "[I]f the legislature defines some core and then provides for increasing the punishment of that upon a finding of some aggravating factof whatever sort, including the fact of a prior convictionthe core and the aggravating fact together constitute an aggravated just as much as grand larceny is an aggravated form of petit larceny. The aggravating fact is an element of the aggravated Similarly, if the legislature, rather than creating grades of s, has provided for setting the punishment of a based on some fact that fact is also an element. No multifactor parsing of statutes, of the sort that we have attempted since is necessary. One need only look to the kind, degree, or range of punishment to which the prosecution is by law entitled for a given set of facts. Each fact for that entitlement is an element." The fact that a defendant brandished a firearm indisputably alters the prescribed range of penalties to which he is exposed under 18 U.S. C. 924(c)(1)(A). Without a finding that a defendant brandished or discharged a firearm, the penalty range for a conviction under 924(c)(1)(A)(i) is five *576 years to life in prison. But with a finding that a defendant brandished a firearm, the penalty range becomes harsher, seven years to life imprisonment. 924(c)(1)(A)(ii). And if the court finds that a defendant discharged a firearm, the range becomes even more severe, 10 years to life. 924(c)(1)(A)(iii). Thus, it is ultimately beside the point whether as a matter of statutory interpretation brandishing is a sentencing factor, because as a constitutional matter brandishing must be deemed an element of an aggravated offense. See I agree with the Court that a legislature is free to decree, within constitutional limits, which facts are elements that constitute a See ante, at 550. But when the legislature provides that a particular fact shall give rise "`both to a special stigma and to a special punishment,' " ante, at 560 (plurality opinion) (quoting ), the constitutional consequences are clear. As the Court acknowledged in society has long recognized a necessary link between punishment and This link makes a great deal of sense: Why, after all, would anyone care if they were convicted of murder, as opposed to manslaughter, but for the increased penalties for the former offense, which in turn reflect the greater moral opprobrium society attaches to the act? We made clear in that if a statute "`annexes a higher degree of punishment' " based on certain circumstances, exposing a defendant to that higher degree of punishment requires that those circumstances be charged in the indictment and proved beyond a reasonable doubt. *577 This constitutional limitation neither interferes with the legislature's ability to define statutory ranges of punishment nor calls into question judicial discretion to impose "judgment within the range prescribed by statute." But it does protect the criminal defendant's constitutional right to know, ex ante, those circumstances that will determine the applicable range of punishment and to have those circumstances proved beyond a reasonable doubt: "If a defendant faces punishment beyond that provided by statute when an offense is committed under certain circumstances but not others, it is obvious that both the loss of liberty and the stigma attaching to the offense are heightened; it necessarily follows that the defendant should notat the moment the State is put to proof of those circumstancesbe deprived of protections that have, until that point, unquestionably attached." B The Court truncates this protection and holds that "facts, sometimes referred to as sentencing factors," do not need to be "alleged in the indictment, submitted to the jury, or established beyond a reasonable doubt," ante, at 550, so long as they do not increase the penalty for the beyond the statutory maximum. This is so even if the fact alters the statutorily mandated sentencing range, by increasing the mandatory minimum sentence. But to say that is in effect to claim that the imposition of a 7-year, rather than a 5-year, mandatory minimum does not change the constitutionally relevant sentence range because, regardless, either sentence falls between five years and the statutory maximum of life, the longest sentence range available under the statute. This analysis is flawed precisely because the statute provides incremental sentencing ranges, in which the mandatory minimum sentence varies upward if a defendant "brandished" or "discharged" a weapon. As a matter of common sense, an *578 increased mandatory minimum heightens the loss of liberty and represents the increased stigma society attaches to the offense. Consequently, facts that trigger an increased mandatory minimum sentence warrant constitutional safeguards. Actual sentencing practices appear to bolster this conclusion. The suggestion that a 7-year sentence could be imposed even without a finding that a defendant brandished a firearm ignores the fact that the sentence imposed when a defendant is found only to have "carried" a firearm "in relation to" a drug trafficking offense appears to be, almost uniformly, if not invariably, five years. Similarly, those found to have brandished a firearm typically, if not always, are sentenced only to 7 years in prison while those found to have discharged a firearm are sentenced only to 10 years. Cf. United States Sentencing Commission, Datafile, USSCFY01, Table 1 (illustrating that almost all persons sentenced for violations of 18 U.S. C. 924(c)(1)(A) are sentenced to 5, 7, or 10 years' imprisonment). This is true even though anyone convicted of violating 924(c)(1)(A) is theoretically eligible to receive a sentence as severe as life imprisonment.[4] Yet under the decision today, those key facts actually responsible for fixing a defendant's punishment need not be charged in an indictment or proved beyond a reasonable doubt. The incremental increase between five and seven years in prison may not seem so great in the abstract (of course it must seem quite different to a defendant actually being incarcerated). However, the constitutional analysis adopted by the plurality would hold equally true if the mandatory *579 minimum for a violation of 924(c)(1) without brandishing was five years, but the mandatory minimum with brandishing was life imprisonment. The result must be the same because surely our fundamental constitutional principles cannot alter depending on degrees of sentencing severity. So long as it was clear that Congress intended for "brandishing" to be a sentencing factor, that fact would still have to be neither charged in the indictment nor proved beyond a reasonable doubt. But if this is the case, then can easily be avoided by clever statutory drafting. It is true that concerned a fact that increased the penalty for a beyond the prescribed statutory maximum, but the principles upon which it relied apply with equal force to those facts that expose the defendant to a higher mandatory minimum: When a fact exposes a defendant to greater punishment than what is otherwise legally prescribed, that fact is "by definition [an] `elemen[t]' of a separate legal offense." 530 U.S., Whether one raises the floor or raises the ceiling it is impossible to dispute that the defendant is exposed to greater punishment than is otherwise prescribed. This is no less true because mandatory minimum sentences are a 20th-century phenomena. As the Government acknowledged at oral argument, this fact means only that historical practice is not directly dispositive of the question whether facts triggering mandatory minimums must be treated like elements. Tr. of Oral Arg. 47. The Court has not previously suggested that constitutional protection ends where legislative innovation or ingenuity begins. Looking to the principles that animated the decision in and the bases for the historical practice upon which rested (rather than to the historical pedigree of mandatory minimums), there are no logical grounds for treating facts triggering mandatory minimums any differently than facts that increase the statutory maximum. In either case the defendant cannot predict the judgment from the face of the *580 felony, see -479, and the absolute statutory limits of his punishment change, constituting an increased penalty. In either case the defendant must be afforded the procedural protections of notice, a jury trial, and a heightened standard of proof with respect to the facts warranting exposure to a greater penalty. See ; III rested on the premise that the "`applicability of the reasonable-doubt standard has always been dependent on how a State defines the offense that is charged in any given case.' " ). Thus, it cannot withstand the logic of at least with respect to facts for which the legislature has prescribed a new statutory sentencing range. broke from the "traditional understanding" of definition, a tradition that "continued well into the 20th century, at least until the middle of the century." The Court in did not, therefore, acknowledge that the change in the prescribed sentence range upon the finding of particular facts changed the prescribed range of penalties in a constitutionally significant way. Rather, while recognizing applicable due process limits, it concluded that the mandatory minimum at issue did not increase the prescribed range of penalties but merely required the judge to impose a specific penalty "within the range already available to it." -88. As this analysis is inherently flawed. called into question, and firmly limited, a related precept underlying : namely, the State's authority to treat aggravated behavior as a factor increasing the sentence, rather than as an element of the Although the plurality resurrects this principle, see ante, at 559-560, 565, it must do so in the face of the Court's contrary *581 conclusion in which adopts the position taken by the dissent in : "[I]f a State provides that a specific component of a prohibited transaction shall give rise both to a special stigma and to a special punishment, that component must be treated as a `fact necessary to constitute the ' within the meaning of our holding in In re Winship. " See Nor should stare decisis dictate the outcome in this case; the stare decisis effect of is considerably weakened for a variety of reasons. As an initial matter, where the Court has wrongly decided a constitutional question, the force of stare decisis is at its weakest. See Ring v. Arizona, post, at 608; And while the relationship between punishment and the constitutional protections attached to the elements of a traces its roots back to the common law, was decided only 16 years ago.[5] No Court of Appeals, let alone this Court, has held that has retroactive effect. The United States concedes, with respect to prospective application, that it can charge facts upon which a mandatory minimum sentence is based in the indictment and prove them to a jury. Tr. of Oral Arg. 42. Consequently, one is hard pressed to give credence to the plurality's suggestion that "[i]t is critical not to abandon" "at this late date." Ante, at 567. Rather, it is imperative that the Court maintain absolute fidelity to the protections of the individual afforded *582 by the notice, trial by jury, and beyond-a-reasonabledoubt requirements. Finally, before today, no one seriously believed that the Court's earlier decision in could coexist with the logical implications of the Court's later decisions in and In both cases, the dissent said as much: "The essential holding of conflicts with at least two of the several formulations the Court gives to the rule it announces today. First, the Court endorses the following principle: `[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt.' Ante, (quoting ). Second, the Court endorses the rule as restated in Justice Scalia's concurring opinion in See ante, There, Justice Scalia wrote: `[I]t is unconstitutional to remove from the jury the assessment of facts that alter the congressionally prescribed range of penal- ties to which a criminal defendant is exposed.' Thus, the Court appears to hold that any fact that increases or alters the range of penalties to which a defendant is exposed which, by definition, must include increases or alterations to either the minimum or maximum penalties must be proved to a jury beyond a reasonable doubt. In however, we rejected such a rule to the extent it concerned those facts that increase or alter the minimum penalty to which a defendant is exposed. Accordingly, it is incumbent on the Court not only to admit that it is overruling but also to explain why such a course of action is appropriate under normal principles of stare decisis. " 530 U. S., *583 See also ("[B]y its terms, Justice Scalia's view would call into question the validity of judge-administered mandatory minimum sentencing provisions, contrary to our holding in Once the facts triggering application of the mandatory minimum are found by the judge, the sentencing range to which the defendant is exposed is altered"). There is no question but that stare decisis may yield where a prior decision's "underpinnings [have been] eroded, by subsequent decisions of this Court." United Further supporting the essential incompatibility of and Justice Breyer concurs in the judgment but not the entire opinion of the Court, recognizing that he "cannot easily distinguish from this case in terms of logic. For that reason, I cannot agree with the plurality's opinion insofar as it finds such a distinction." Ante, at 569 (opinion concurring in part and concurring in judgment). This leaves only a minority of the Court embracing the distinction between and that forms the basis of today's holding, and at least one Member explicitly continues to reject both and Ante, at 569 (O'Connor, J., concurring). * * * "Conscious of the likelihood that legislative decisions may have been made in reliance on " in "we reserve[d] for another day the question whether stare decisis considerations preclude reconsideration of its narrower holding." n. 13. But that day has come, and adherence to stare decisis in this case would require infidelity to our constitutional values. Because, like most Members of this Court, I cannot logically distinguish the issue here from the principles underlying the Court's decision in I respectfully dissent. |
Justice Brennan | dissenting | true | Duncan v. Tennessee | 1972-02-23T00:00:00 | null | https://www.courtlistener.com/opinion/108469/duncan-v-tennessee/ | https://www.courtlistener.com/api/rest/v3/clusters/108469/ | 1,972 | 1971-059 | 1 | 6 | 3 | In dismissing the writ of certiorari in this case, the Court lets stand a conviction secured in violation of petitioner's right, under the Fifth and Fourteenth Amendments, not to be placed in jeopardy twice for a single criminal offense. The infringement of this *128 fundamental right is so plain on the record before us that I am compelled to dissent.
Petitioner and a codefendant, Brooks, were brought to trial in the Criminal Court of Montgomery County, Tennessee, on an indictment charging armed robbery "by the use of a deadly weapon, to-wit: A Gun to-wit: a pistol . . . ."[1] The jury was selected and sworn, the indictment read, and a plea of not guilty entered on the defendants' behalf. The State's first witness, the officer investigating the robbery, testified that he had been looking for a "22 rifle" used in the commission of the crime. Defense counsel immediately objected to this evidence as immaterial to a charge of armed robbery with a pistol, and after some discussion out of the jury's presence, his objection was sustained. The prosecutor then informed the court that he had used the word "pistol" in the indictment by mistake and that in view of the court's refusal to admit evidence of the rifle, the State could proceed no further with its case and would move for a directed verdict of acquittal on the ground of erroneous indictment. The trial court granted this motion over defendants' objection and instructed the jury "to find, or to acquit the Defendants of the charge in view of that error in the indictment."
About eight months later, in March 1969, the defendants were again brought to trial for the same armed robbery. The new indictment was identical to the old *129 as to date, victim, and amount of money stolen and differed only in its description of the weapon as a "22 caliber rifle." Nevertheless, defendants' plea of double jeopardy was overruled by the court, and they were convicted and sentenced to 10 years' imprisonment. The State Court of Criminal Appeals sustained defendants' double jeopardy claim on appeal, but the Supreme Court of Tennessee reversed. State v. Brooks, 224 Tenn. 712, 462 S.W.2d 491 (1970). It agreed that evidence of the rifle was properly excluded at the first trial, since under Tennessee's "strict" variance rule " `an allegation in an indictment which is not impertinent or foreign to the cause [such as specifying the weapon as a pistol] must be proved, though a prosecution for the same offense might be supported without such allegation' . . . ." 224 Tenn., at 717, 462 S. W. 2d, at 494 (italics omitted), quoting Hite v. State, 17 Tenn. 357, 377 (1836) (theft of note payable at Mechanics' and Traders' Bank inadmissible on indictment specifying note payable at Merchants' and Traders' Bank). See also Wilson v. State, 200 Tenn. 309, 292 S.W.2d 188 (1956) (proof of theft of bronze rollers material variance from indictment charging theft of brass rollers). The court went on to hold, however, that since the variance between "pistol" and "rifle" was sufficient to render the initial indictment defective, it was likewise sufficient to distinguish the second indictment from the first for double jeopardy purposes. " `To entitle a prisoner to the benefit of the plea of autrefois acquit, it is necessary that the crimes charged in the last bill of indictment be precisely the same with that charged in the first, and that the first bill of indictment is good in point of law. The true test by which the question whether such a plea is a sufficient bar may be tried is whether the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction *130 upon the first.' " 224 Tenn., at 715, 462 S. W. 2d, at 493, quoting Hite v. State, supra, at 375-376. Though recognizing the application of the Double Jeopardy Clause to the States, Benton v. Maryland, 395 U.S. 784 (1969), the court concluded that the strict variance rule "when consistently applied as a test for both variance and double jeopardy, will affect equally both the state and the defendant, and in our opinion not offend the Fourteenth Amendment." 224 Tenn., at 719, 462 S. W. 2d, at 494. A petition for rehearing based on this Court's decision in Ashe v. Swenson, 397 U.S. 436 (1970), was denied on the ground that Ashe "has no application to the question whether there has been double jeopardy where the first indictment is void for variance." 224 Tenn., at 720, 462 S. W. 2d, at 495.
The guarantee against double jeopardy is "fundamental to the American scheme of justice,' " Benton v. Maryland, supra, at 796, designed to ensure that "the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty." Green v. United States, 355 U.S. 184, 187-188 (1957). Thus, we must view with a cautious eye any suggestion, as in the denial of rehearing below, that a particular trial, once commenced, might not result in the attachment of jeopardy under the Constitution. As the State conceded at oral argument, that suggestion is not sustainable here. Had petitioner's first trial gone no further than the impaneling of a jury, this in itself would have served to invoke the constitutional guarantee, for it is now settled that "a defendant is placed in jeopardy once he is put to trial before a jury so that if the jury is discharged without his *131 consent he cannot be tried again." Id., at 188. There are exceptions to this rule, of course, as in the case of a hung jury, United States v. Perez, 9 Wheat. 579 (1824), or military emergency requiring withdrawal of charges, Wade v. Hunter, 336 U.S. 684 (1949), but they do not apply here.
In any event, we need not rely on the calling of a jury to find an attachment of jeopardy, for it is clear that petitioner was not only tried for robbery in the initial proceeding, but was in fact acquitted at the direction of the court. His acquittal, being the final verdict in a court of competent jurisdiction, automatically precluded the State from retrying him for the same offense, even though, as the court below pointed out, the direction to acquit arose from a defect in the indictment. It has long been the rule of this Court that "former jeopardy includes one who has been acquitted by a verdict duly rendered, although no judgment be entered on the verdict, and it was found upon a defective indictment. The protection is not . . . against the peril of second punishment, but against being again tried for the same offense." Kepner v. United States, 195 U.S. 100, 130 (1904) (emphasis added). See also United States v. Ball, 163 U.S. 662, 669-670 (1896); Fong Foo v. United States, 369 U.S. 141 (1962) (directed verdict of acquittal, though "egregiously erroneous," bars retrial on the same charge); Benton v. Maryland, supra, at 796-797. Nor is this rule a mere nicety of abstract constitutional theory. The prosecution might have any number of reasons for wanting to halt a trial at midpoint and begin anew, and the indictment offers a fertile source for the discovery of error. To permit the State to obtain a final verdict by asserting its own mistake in the indictment and then to retry the defendant on the theory that jeopardy had not attached is to subject him to the very dangers that the Double Jeopardy *132 Clause was designed to avoid. The State very properly conceded at oral argument that petitioner "was placed in jeopardy in the first trial." Tr. of Oral Arg. 23.
The only question, then, is whether the petitioner was tried twice for the same offense. Tennessee argues that under its strict-variance rule the specification of "pistol" in the first indictment charged an entirely different offense from the armed robbery with a "rifle" alleged in the second, since the "same evidence" could not be used to prove both charges. Whatever relevance this doctrine may have in determining a variance between indictment and proof within a single trial, it certainly does not comport with the double jeopardy standards of the Fifth and Fourteenth Amendments. In my view, "the Double Jeopardy Clause requires the prosecution, except in most limited circumstances, to join at one trial all the charges against a defendant that grow out of a single criminal act, occurrence, episode, or transaction." Ashe v. Swenson, supra, at 453-454 (concurring opinion). This the State has clearly failed to do. At petitioner's first trial the State was prepared to proceed on evidence that a rifle had been used in the robbery. The first witness testified as to a rifle, and the rifle itself was apparently in the courtroom in full view of the jury. Following petitioner's acquittal, the State again tried him for armed robbery with a rifle. The same witness was called to testify about the rifle as in the first trial, and the same rifle was present in the courtroom. In short, though the first indictment charged petitioner with using a "pistol," the State could also have charged him with use of a rifle, based on the very same evidence, both physical and testimonial, on which he was eventually convicted at the second trial. Having failed to do so and having obtained a final verdict at the first trial, the State was barred, in my opinion, from bringing a *133 second prosecution based on this "single criminal act."[2]
The majority's refusal to address these issues is inexplicable. It may be that the prosecution in this case did not have available to it a ready means, under state law, of amending the first indictment and thus had no choice but to end the trial and begin again. If so, its remedy lies in changing Tennessee's criminal procedure, not in denying petitioner the constitutional protection to which he is entitled. Petitioner was tried twice for the same offense, and his conviction should be reversed. United States v. Jorn, 400 U.S. 470, 488 (1971) (Black and BRENNAN, JJ., concurring). I would grant him that relief.
| In dismissing the writ of certiorari in this case, the Court lets stand a conviction secured in violation of petitioner's right, under the Fifth and Fourteenth Amendments, not to be placed in jeopardy twice for a single criminal offense. The infringement of this *128 fundamental right is so plain on the record before us that I am compelled to dissent. Petitioner and a codefendant, Brooks, were brought to trial in the Criminal Court of Montgomery County, Tennessee, on an indictment charging armed robbery "by the use of a deadly weapon, to-wit: A Gun to-wit: a pistol"[1] The jury was selected and sworn, the indictment read, and a plea of not guilty entered on the defendants' behalf. The 's first witness, the officer investigating the robbery, testified that he had been looking for a "22 rifle" used in the commission of the crime. Defense counsel immediately objected to this evidence as immaterial to a charge of armed robbery with a pistol, and after some discussion out of the jury's presence, his objection was sustained. The prosecutor then informed the court that he had used the word "pistol" in the indictment by mistake and that in view of the court's refusal to admit evidence of the rifle, the could proceed no further with its case and would move for a directed verdict of acquittal on the ground of erroneous indictment. The trial court granted this motion over defendants' objection and instructed the jury "to find, or to acquit the Defendants of the charge in view of that error in the indictment." About eight months later, in March 1969, the defendants were again brought to trial for the same armed robbery. The new indictment was identical to the old *129 as to date, victim, and amount of money stolen and differed only in its description of the weapon as a "22 caliber rifle." Nevertheless, defendants' plea of double jeopardy was overruled by the court, and they were convicted and sentenced to 10 years' imprisonment. The Court of Criminal Appeals sustained defendants' double jeopardy claim on appeal, but the Supreme Court of Tennessee reversed. It agreed that evidence of the rifle was properly excluded at the first trial, since under Tennessee's "strict" variance rule " `an allegation in an indictment which is not impertinent or foreign to the cause [such as specifying the weapon as a pistol] must be proved, though a prosecution for the same offense might be supported without such allegation'" 462 S. W. 2d, at 494 (italics omitted), quoting See also The court went on to hold, however, that since the variance between "pistol" and "rifle" was sufficient to render the initial indictment defective, it was likewise sufficient to distinguish the second indictment from the first for double jeopardy purposes. " `To entitle a prisoner to the benefit of the plea of autrefois acquit, it is necessary that the crimes charged in the last bill of indictment be precisely the same with that charged in the first, and that the first bill of indictment is good in point of law. The true test by which the question whether such a plea is a sufficient bar may be tried is whether the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction * upon the first.' " 462 S. W. 2d, at 493, quoting Though recognizing the application of the Double Jeopardy Clause to the s, the court concluded that the strict variance rule "when consistently applied as a test for both variance and double jeopardy, will affect equally both the state and the defendant, and in our opinion not offend the Fourteenth Amendment." 462 S. W. 2d, at 494. A petition for rehearing based on this Court's decision in was denied on the ground that Ashe "has no application to the question whether there has been double jeopardy where the first indictment is void for variance." 462 S. W. 2d, at 495. The guarantee against double jeopardy is "fundamental to the American scheme of justice,' " designed to ensure that "the with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty." Green v. United s, Thus, we must view with a cautious eye any suggestion, as in the denial of rehearing below, that a particular trial, once commenced, might not result in the attachment of jeopardy under the Constitution. As the conceded at oral argument, that suggestion is not sustainable here. Had petitioner's first trial gone no further than the impaneling of a jury, this in itself would have served to invoke the constitutional guarantee, for it is now settled that "a defendant is placed in jeopardy once he is put to trial before a jury so that if the jury is discharged without his *131 consent he cannot be tried again." There are exceptions to this rule, of course, as in the case of a hung jury, United s v. Perez, or military emergency requiring withdrawal of charges, but they do not apply here. In any event, we need not rely on the calling of a jury to find an attachment of jeopardy, for it is clear that petitioner was not only tried for robbery in the initial proceeding, but was in fact acquitted at the direction of the court. His acquittal, being the final verdict in a court of competent jurisdiction, automatically precluded the from retrying him for the same offense, even though, as the court below pointed out, the direction to acquit arose from a defect in the indictment. It has long been the rule of this Court that "former jeopardy includes one who has been acquitted by a verdict duly rendered, although no judgment be entered on the verdict, and it was found upon a defective indictment. The protection is not against the peril of second punishment, but against being again tried for the same offense." Kepner v. United s, See also United s v. Ball, ; Fong Foo v. United s, ; -797. Nor is this rule a mere nicety of abstract constitutional theory. The prosecution might have any number of reasons for wanting to halt a trial at midpoint and begin anew, and the indictment offers a fertile source for the discovery of error. To permit the to obtain a final verdict by asserting its own mistake in the indictment and then to retry the defendant on the theory that jeopardy had not attached is to subject him to the very dangers that the Double Jeopardy *132 Clause was designed to avoid. The very properly conceded at oral argument that petitioner "was placed in jeopardy in the first trial." Tr. of Oral Arg. 23. The only question, then, is whether the petitioner was tried twice for the same offense. Tennessee argues that under its strict-variance rule the specification of "pistol" in the first indictment charged an entirely different offense from the armed robbery with a "rifle" alleged in the second, since the "same evidence" could not be used to prove both charges. Whatever relevance this doctrine may have in determining a variance between indictment and proof within a single trial, it certainly does not comport with the double jeopardy standards of the Fifth and Fourteenth Amendments. In my view, "the Double Jeopardy Clause requires the prosecution, except in most limited circumstances, to join at one trial all the charges against a defendant that grow out of a single criminal act, occurrence, episode, or transaction." This the has clearly failed to do. At petitioner's first trial the was prepared to proceed on evidence that a rifle had been used in the robbery. The first witness testified as to a rifle, and the rifle itself was apparently in the courtroom in full view of the jury. Following petitioner's acquittal, the again tried him for armed robbery with a rifle. The same witness was called to testify about the rifle as in the first trial, and the same rifle was present in the courtroom. In short, though the first indictment charged petitioner with using a "pistol," the could also have charged him with use of a rifle, based on the very same evidence, both physical and testimonial, on which he was eventually convicted at the second trial. Having failed to do so and having obtained a final verdict at the first trial, the was barred, in my opinion, from bringing a *133 second prosecution based on this "single criminal act."[2] The majority's refusal to address these issues is inexplicable. It may be that the prosecution in this case did not have available to it a ready means, under state law, of amending the first indictment and thus had no choice but to end the trial and begin again. If so, its remedy lies in changing Tennessee's criminal procedure, not in denying petitioner the constitutional protection to which he is entitled. Petitioner was tried twice for the same offense, and his conviction should be reversed. United s v. Jorn, I would grant him that relief. |
Justice Rehnquist | second_dissenting | false | INS v. Chadha | 1983-06-23T00:00:00 | null | https://www.courtlistener.com/opinion/110985/ins-v-chadha/ | https://www.courtlistener.com/api/rest/v3/clusters/110985/ | 1,983 | 1982-130 | 3 | 7 | 2 | A severability clause creates a presumption that Congress intended the valid portion of the statute to remain in force when one part is found to be invalid. Carter v. Carter Coal Co., 298 U.S. 238, 312 (1936); Champlin Refining Co. v. Corporation Comm'n of Oklahoma, 286 U.S. 210, 235 *1014 (1932). A severability clause does not, however, conclusively resolve the issue. "[T]he determination, in the end, is reached by" asking "[w]hat was the intent of the lawmakers," Carter, supra, at 312, and "will rarely turn on the presence or absence of such a clause." United States v. Jackson, 390 U.S. 570, 585, n. 27 (1968). Because I believe that Congress did not intend the one-House veto provision of § 244(c)(2) to be severable, I dissent.
Section 244(c)(2) is an exception to the general rule that an alien's deportation shall be suspended when the Attorney General finds that statutory criteria are met. It is severable only if Congress would have intended to permit the Attorney General to suspend deportations without it. This Court has held several times over the years that exceptions such as this are not severable because
"by rejecting the exceptions intended by the legislature. . . the statute is made to enact what confessedly the legislature never meant. It confers upon the statute a positive operation beyond the legislative intent, and beyond what anyone can say it would have enacted in view of the illegality of the exceptions." Spraigue v. Thompson, 118 U.S. 90, 95 (1886).
By severing § 244(c)(2), the Court permits suspension of deportation in a class of cases where Congress never stated that suspension was appropriate. I do not believe we should expand the statute in this way without some clear indication that Congress intended such an expansion. As the Court said in Davis v. Wallace, 257 U.S. 478, 484-485 (1922):
"Where an excepting provision in a statute is found unconstitutional, courts very generally hold that this does not work an enlargement of the scope or operation of other provisions with which that provision was enacted and which was intended to qualify or restrain. The reasoning on which the decisions proceed is illustrated in State ex rel. McNeal v. Dombaugh, 20 Ohio St. 167, 174. In dealing with a contention that a statute *1015 containing an unconstitutional provision should be construed as if the remainder stood alone, the court there said: `This would be to mutilate the section and garble its meaning. The legislative intention must not be confounded with their power to carry that intention into effect. To refuse to give force and vitality to a provision of law is one thing, and to refuse to read it is a very different thing. It is by a mere figure of speech that we say an unconstitutional provision of a statute is "stricken out." For all the purposes of construction it is to be regarded as part of the act. The meaning of the legislature must be gathered from all that they have said, as well from that which is ineffectual for want of power, as from that which is authorized by law.'
"Here the excepting provision was in the statute when it was enacted, and there can be no doubt that the legislature intended that the meaning of the other provisions should be taken as restricted accordingly. Only with that restricted meaning did they receive the legislative sanction which was essential to make them part of the statute law of the State; and no other authority is competent to give them a larger application."
See also Frost v. Corporation Comm'n of Oklahoma, 278 U.S. 515, 525 (1929).
The Court finds that the legislative history of § 244 shows that Congress intended § 244(c)(2) to be severable because Congress wanted to relieve itself of the burden of private bills. But the history elucidated by the Court shows that Congress was unwilling to give the Executive Branch permission to suspend deportation on its own. Over the years, Congress consistently rejected requests from the Executive for complete discretion in this area. Congress always insisted on retaining ultimate control, whether by concurrent resolution, as in the 1948 Act, or by one-House veto, as in the present Act. Congress has never indicated that it would be willing to permit suspensions of deportation unless it could retain some sort of veto.
*1016 It is doubtless true that Congress has the power to provide for suspensions of deportation without a one-House veto. But the Court has failed to identify any evidence that Congress intended to exercise that power. On the contrary, Congress' continued insistence on retaining control of the suspension process indicates that it has never been disposed to give the Executive Branch a free hand. By severing § 244(c)(2) the Court has " `confounded' " Congress' " `intention' " to permit suspensions of deportation " `with their power to carry that intention into effect.' " Davis, supra, at 484, quoting State ex rel. McNeal v. Dombaugh, 20 Ohio St. 167, 174 (1870).
Because I do not believe that § 244(c)(2) is severable, I would reverse the judgment of the Court of Appeals.
| A severability clause creates a presumption that Congress intended the valid portion of the statute to remain in force when one part is found to be invalid. ; Champlin Refining A severability clause does not, however, conclusively resolve the issue. "[T]he determination, in the end, is reached by" asking "[w]hat was the intent of the lawmakers," at and "will rarely turn on the presence or absence of such a clause." United Because I believe that Congress did not intend the one-House veto provision of 244(c)(2) to be severable, I dissent. Section 244(c)(2) is an exception to the general rule that an alien's deportation shall be suspended when the Attorney General finds that statutory criteria are met. It is severable only if Congress would have intended to permit the Attorney General to suspend deportations without it. This Court has held several times over the years that exceptions such as this are not severable because "by rejecting the exceptions intended by the legislature. the statute is made to enact what confessedly the legislature never meant. It confers upon the statute a positive operation beyond the legislative intent, and beyond what anyone can say it would have enacted in view of the illegality of the exceptions." By severing 244(c)(2), the Court permits suspension of deportation in a class of cases where Congress never stated that suspension was appropriate. I do not believe we should expand the statute in this way without some clear indication that Congress intended such an expansion. As the Court said in : "Where an excepting provision in a statute is found unconstitutional, courts very generally hold that this does not work an enlargement of the scope or operation of other provisions with which that provision was enacted and which was intended to qualify or restrain. The reasoning on which the decisions proceed is illustrated in State ex rel. In dealing with a contention that a statute *1015 containing an unconstitutional provision should be construed as if the remainder stood alone, the court there said: `This would be to mutilate the section and garble its meaning. The legislative intention must not be confounded with their power to carry that intention into effect. To refuse to give force and vitality to a provision of law is one thing, and to refuse to read it is a very different thing. It is by a mere figure of speech that we say an unconstitutional provision of a statute is "stricken out." For all the purposes of construction it is to be regarded as part of the act. The meaning of the legislature must be gathered from all that they have said, as well from that which is ineffectual for want of power, as from that which is authorized by law.' "Here the excepting provision was in the statute when it was enacted, and there can be no doubt that the legislature intended that the meaning of the other provisions should be taken as restricted accordingly. Only with that restricted meaning did they receive the legislative sanction which was essential to make them part of the statute law of the State; and no other authority is competent to give them a larger application." See also The Court finds that the legislative history of 244 shows that Congress intended 244(c)(2) to be severable because Congress wanted to relieve itself of the burden of private bills. But the history elucidated by the Court shows that Congress was unwilling to give the Executive Branch permission to suspend deportation on its own. Over the years, Congress consistently rejected requests from the Executive for complete discretion in this area. Congress always insisted on retaining ultimate control, whether by concurrent resolution, as in the 1948 Act, or by one-House veto, as in the present Act. Congress has never indicated that it would be willing to permit suspensions of deportation unless it could retain some sort of veto. *1016 It is doubtless true that Congress has the power to provide for suspensions of deportation without a one-House veto. But the Court has failed to identify any evidence that Congress intended to exercise that power. On the contrary, Congress' continued insistence on retaining control of the suspension process indicates that it has never been disposed to give the Executive Branch a free hand. By severing 244(c)(2) the Court has " `confounded' " Congress' " `intention' " to permit suspensions of deportation " `with their power to carry that intention into effect.' " quoting State ex rel. Because I do not believe that 244(c)(2) is severable, I would reverse the judgment of the Court of Appeals. |
Justice Rehnquist | dissenting | false | Missouri v. Jenkins | 1989-06-19T00:00:00 | null | https://www.courtlistener.com/opinion/112299/missouri-v-jenkins/ | https://www.courtlistener.com/api/rest/v3/clusters/112299/ | 1,989 | 1988-119 | 2 | 5 | 3 | I agree with JUSTICE O'CONNOR that the Eleventh Amendment does not permit an award of attorney's fees against a State which includes compensation for delay in payment. Unlike JUSTICE O'CONNOR, however, I do not agree with the *296 Court's approval of the award of law clerk and paralegal fees made here.
Title 42 U.S. C. § 1988 gives the district courts discretion to allow the prevailing party in an action under 42 U.S. C. § 1983 "a reasonable attorney's fee as part of the costs." The Court reads this language as authorizing recovery of "a `reasonable' fee for the attorney's work product," ante, at 285, which, the Court concludes, may include separate compensation for the services of law clerks and paralegals. But the statute itself simply uses the very familiar term "a reasonable attorney's fee," which to those untutored in the Court's linguistic juggling means a fee charged for services rendered by an individual who has been licensed to practice law. Because law clerks and paralegals have not been licensed to practice law in Missouri, it is difficult to see how charges for their services may be separately billed as part of "attorney's fees." And since a prudent attorney customarily includes compensation for the cost of law clerk and paralegal services, like any other sort of office overhead from secretarial staff, janitors, and librarians, to telephone service, stationery, and paper clips in his own hourly billing rate, allowing the prevailing party to recover separate compensation for law clerk and paralegal services may result in "double recovery."
The Court finds justification for its ruling in the fact that the prevailing practice among attorneys in Kansas City is to bill clients separately for the services of law clerks and paralegals. But I do not think Congress intended the meaning of the statutory term "attorney's fee" to expand and contract with each and every vagary of local billing practice. Under the Court's logic, prevailing parties could recover at market rates for the cost of secretaries, private investigators, and other types of lay personnel who assist the attorney in preparing his case, so long as they could show that the prevailing practice in the local market was to bill separately for these services. Such a result would be a sufficiently drastic departure from the traditional concept of "attorney's fees" that I *297 believe new statutory authorization should be required for it. That permitting separate billing of law clerk and paralegal hours at market rates might " `reduc[e] the spiraling cost of civil rights litigation' " by encouraging attorneys to delegate to these individuals tasks which they would otherwise perform themselves at higher cost, ante, at 288, and n. 10, may be a persuasive reason for Congress to enact such additional legislation. It is not, however, a persuasive reason for us to rewrite the legislation which Congress has in fact enacted. See Badaracco v. Commissioner, 464 U.S. 386, 398 (1984) ("Courts are not authorized to rewrite a statute because they might deem its effects susceptible of improvement").
I also disagree with the State's suggestion that law clerk and paralegal expenses incurred by a prevailing party, if not recoverable at market rates as "attorney's fees" under § 1988, are nonetheless recoverable at actual cost under that statute. The language of § 1988 expands the traditional definition of "costs" to include "a reasonable attorney's fee," but it cannot fairly be read to authorize the recovery of all other out-of-pocket expenses actually incurred by the prevailing party in the course of litigation. Absent specific statutory authorization for the recovery of such expenses, the prevailing party remains subject to the limitations on cost recovery imposed by Federal Rule of Civil Procedure 54(d) and 28 U.S. C. § 1920, which govern the taxation of costs in federal litigation where a cost-shifting statute is not applicable. Section 1920 gives the district court discretion to tax certain types of costs against the losing party in any federal litigation. The statute specifically enumerates six categories of expenses which may be taxed as costs: fees of the court clerk and marshal; fees of the court reporter; printing fees and witness fees; copying fees; certain docket fees; and fees of court-appointed experts and interpreters. We have held that this list is exclusive. Crawford Fitting Co. v. J. T. Gibbons, Inc., 482 U.S. 437 (1987). Since none of these categories can possibly be construed to include the fees of law clerks and paralegals, *298 I would also hold that reimbursement for these expenses may not be separately awarded at actual cost.
I would therefore reverse the award of reimbursement for law clerk and paralegal expenses.
| I agree with JUSTICE O'CONNOR that the Eleventh Amendment does not permit an award of attorney's fees against a State which includes compensation for delay in payment. Unlike JUSTICE O'CONNOR, however, I do not agree with the *296 Court's approval of the award of law clerk and paralegal fees made here. Title 42 U.S. C. 1988 gives the district courts discretion to allow the prevailing party in an action under 42 U.S. C. 1983 "a reasonable attorney's fee as part of the costs." The Court reads this language as authorizing recovery of "a `reasonable' fee for the attorney's work product," ante, at 285, which, the Court concludes, may include separate compensation for the services of law clerks and paralegals. But the statute itself simply uses the very familiar term "a reasonable attorney's fee," which to those untutored in the Court's linguistic juggling means a fee charged for services rendered by an individual who has been licensed to practice law. Because law clerks and paralegals have not been licensed to practice law in Missouri, it is difficult to see how charges for their services may be separately billed as part of "attorney's fees." And since a prudent attorney customarily includes compensation for the cost of law clerk and paralegal services, like any other sort of office overhead from secretarial staff, janitors, and librarians, to telephone service, stationery, and paper clips in his own hourly billing rate, allowing the prevailing party to recover separate compensation for law clerk and paralegal services may result in "double recovery." The Court finds justification for its ruling in the fact that the prevailing practice among attorneys in Kansas City is to bill clients separately for the services of law clerks and paralegals. But I do not think Congress intended the meaning of the statutory term "attorney's fee" to expand and contract with each and every vagary of local billing practice. Under the Court's logic, prevailing parties could recover at market rates for the cost of secretaries, private investigators, and other types of lay personnel who assist the attorney in preparing his case, so long as they could show that the prevailing practice in the local market was to bill separately for these services. Such a result would be a sufficiently drastic departure from the traditional concept of "attorney's fees" that I *297 believe new statutory authorization should be required for it. That permitting separate billing of law clerk and paralegal hours at market rates might " `reduc[e] the spiraling cost of civil rights litigation' " by encouraging attorneys to delegate to these individuals tasks which they would otherwise perform themselves at higher cost, ante, at 288, and n. 10, may be a persuasive reason for Congress to enact such additional legislation. It is not, however, a persuasive reason for us to rewrite the legislation which Congress has in fact enacted. See I also disagree with the State's suggestion that law clerk and paralegal expenses incurred by a prevailing party, if not recoverable at market rates as "attorney's fees" under 1988, are nonetheless recoverable at actual cost under that statute. The language of 1988 expands the traditional definition of "costs" to include "a reasonable attorney's fee," but it cannot fairly be read to authorize the recovery of all other out-of-pocket expenses actually incurred by the prevailing party in the course of litigation. Absent specific statutory authorization for the recovery of such expenses, the prevailing party remains subject to the limitations on cost recovery imposed by Federal Rule of Civil Procedure 54(d) and 28 U.S. C. 1920, which govern the taxation of costs in federal litigation where a cost-shifting statute is not applicable. Section 1920 gives the district court discretion to tax certain types of costs against the losing party in any federal litigation. The statute specifically enumerates six categories of expenses which may be taxed as costs: fees of the court clerk and marshal; fees of the court reporter; printing fees and witness fees; copying fees; certain docket fees; and fees of court-appointed experts and interpreters. We have held that this list is exclusive. Crawford Fitting Since none of these categories can possibly be construed to include the fees of law clerks and paralegals, *298 I would also hold that reimbursement for these expenses may not be separately awarded at actual cost. I would therefore reverse the award of reimbursement for law clerk and paralegal expenses. |
Justice White | concurring | false | Nader v. Allegheny Airlines, Inc. | 1976-06-07T00:00:00 | null | https://www.courtlistener.com/opinion/109472/nader-v-allegheny-airlines-inc/ | https://www.courtlistener.com/api/rest/v3/clusters/109472/ | 1,976 | 1975-116 | 2 | 9 | 0 | I join the Court's opinion with these additional words.
It may be that under its rulemaking authority the Board would have power to order airline overbooking and to pre-empt recoveries under state law for undisclosed overbooking or for overselling. But it has not done so, at least as yet. It is also unnecessary to stay proceedings on the present state-law claim pending Board action under § 411. Neither an order denying nor one granting relief under that section would foreclose claims based on state law; and there is not present here the additional consideration that a § 411 proceeding would be helpful in resolving, or affecting in some manner, the state-law claim for compensatory and punitive damages. Cf. Ricci v. Chicago Mercantile Exchange, 409 U.S. 289 (1973); Chicago Mercantile Exchange v. Deaktor, *309 414 U.S. 113 (1973). I seriously doubt that any pending or future § 411 case would reveal anything relevant to this case about the Board's view of the propriety of overbooking and of overselling that is not already apparent from prior proceedings concerning those subjects.
| I join the Court's opinion with these additional words. It may be that under its rulemaking authority the Board would have power to order airline overbooking and to pre-empt recoveries under state law for undisclosed overbooking or for overselling. But it has not done so, at least as yet. It is also unnecessary to stay proceedings on the present state-law claim pending Board action under 411. Neither an order denying nor one granting relief under that section would foreclose claims based on state law; and there is not present here the additional consideration that a 411 proceeding would be helpful in resolving, or affecting in some manner, the state-law claim for compensatory and punitive damages. Cf. ; Chicago Mercantile I seriously doubt that any pending or future 411 case would reveal anything relevant to this case about the Board's view of the propriety of overbooking and of overselling that is not already apparent from prior proceedings concerning those subjects. |
Justice Breyer | second_dissenting | false | Rapanos v. United States | 2006-06-19T00:00:00 | null | https://www.courtlistener.com/opinion/145642/rapanos-v-united-states/ | https://www.courtlistener.com/api/rest/v3/clusters/145642/ | 2,006 | 2005-069 | 1 | 5 | 4 | In my view, the authority of the Army Corps of Engineers under the Clean Water Act extends to the limits of congressional power to regulate interstate commerce. See Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U.S. 159, 181-182 (2001) (SWANCC) (Stevens, J., dissenting). I therefore have no difficulty finding that the wetlands at issue in these cases are within the Corps' jurisdiction, and I join Justice Stevens' dissenting opinion.
My view of the statute rests in part upon the nature of the problem. The statute seeks to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S. C. § 1251(a). Those waters are so various and so intricately interconnected that Congress might well have decided the only way to achieve this goal is to write a statute that defines "waters" broadly and to leave the enforcing agency with the task of restricting the scope of that definition, either wholesale through regulation or retail through development permissions. That is why I believe that Congress, in using the term "waters of the United States," § 1362(7), intended fully to exercise its relevant Commerce Clause powers.
I mention this because the Court, contrary to my view, has written a "nexus" requirement into the statute. SWANCC, supra, at 167; ante, at 779 (Kennedy, J., concurring in judgment) ("[T]he Corps' jurisdiction over wetlands depends upon the existence of a significant nexus between the wetlands in question and navigable waters in the traditional sense"). But it has left the administrative powers of the Army Corps of Engineers untouched. That agency may write regulations defining the termsomething that it has not yet done. And the courts must give those regulations appropriate deference. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
If one thing is clear, it is that Congress intended the Army Corps of Engineers to make the complex technical judgments *812 that lie at the heart of the present cases (subject to deferential judicial review). In the absence of updated regulations, courts will have to make ad hoc determinations that run the risk of transforming scientific questions into matters of law. That is not the system Congress intended. Hence I believe that today's opinions, taken together, call for the Army Corps of Engineers to write new regulations, and speedily so.
| In my view, the authority of the Army Corps of Engineers under the Clean Water Act extends to the limits of congressional power to regulate interstate commerce. See Solid Waste Agency of Northern Cook (Stevens, J., dissenting). I therefore have no difficulty finding that the wetlands at issue in these cases are within the Corps' jurisdiction, and I join Justice Stevens' dissenting opinion. My view of the statute rests in part upon the nature of the problem. The statute seeks to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S. C. 1251(a). Those waters are so various and so intricately interconnected that Congress might well have decided the only way to achieve this goal is to write a statute that defines "waters" broadly and to leave the enforcing agency with the task of restricting the scope of that definition, either wholesale through regulation or retail through development permissions. That is why I believe that Congress, in using the term "waters of the United States," 1362(7), intended fully to exercise its relevant Commerce Clause powers. I mention this because the Court, contrary to my view, has written a "nexus" requirement into the statute. ; ante, at 779 (Kennedy, J., concurring in judgment) ("[T]he Corps' jurisdiction over wetlands depends upon the existence of a significant nexus between the wetlands in question and navigable waters in the traditional sense"). But it has left the administrative powers of the Army Corps of Engineers untouched. That agency may write regulations defining the termsomething that it has not yet done. And the courts must give those regulations appropriate deference. Chevron U. S. A. If one thing is clear, it is that Congress intended the Army Corps of Engineers to make the complex technical judgments *812 that lie at the heart of the present cases (subject to deferential judicial review). In the absence of updated regulations, courts will have to make ad hoc determinations that run the risk of transforming scientific questions into matters of law. That is not the system Congress intended. Hence I believe that today's opinions, taken together, call for the Army Corps of Engineers to write new regulations, and speedily so. |
Justice Stevens | majority | false | ABF Freight System, Inc. v. NLRB | 1994-01-24T00:00:00 | null | https://www.courtlistener.com/opinion/112925/abf-freight-system-inc-v-nlrb/ | https://www.courtlistener.com/api/rest/v3/clusters/112925/ | 1,994 | 1993-018 | 1 | 9 | 0 | Michael Manso gave his employer a false excuse for being late to work and repeated that falsehood while testifying under oath before an Administrative Law Judge (ALJ). Notwithstanding Manso's dishonesty, the National Labor Relations Board (Board) ordered Manso's former employer to reinstate him with backpay. Our interest in preserving the integrity of administrative proceedings prompted us to grant *319 certiorari to consider whether Manso's misconduct should have precluded the Board from granting him that relief.
I
Manso worked as a casual dockworker at petitioner ABF Freight System, Inc.'s (ABF's) trucking terminal in Albuquerque, New Mexico, from the summer of 1987 to August 1989. He was fired three times. The first time, Manso was 1 of 12 employees discharged in June 1988 in a dispute over a contractual provision relating to so-called "preferential casual" dockworkers.[1] The grievance Manso's union filed eventually secured his reinstatement; Manso also filed an unfair labor practice charge against ABF over the incident.
Manso's return to work was short lived. Three supervisors warned him of likely retaliation from top management alerting him, for example, that ABF was "gunning" for him, App. 96, and that "the higher echelon was after [him]," id., at 96-97. See also ABF Freight System, Inc., 304 N. L. R. B. 585, 592, 597 (1991). Within six weeks ABF discharged Manso for a second time on pretextual grounds ostensibly for failing to respond to a call to work made under a stringent verification procedure ABF had recently imposed upon preferential casuals.[2] Once again, a grievance panel ordered Manso reinstated.
*320 Manso's third discharge came less than two months later. On August 11, 1989, Manso arrived four minutes late for the 5 a.m. shift. At the time, ABF had no policy regarding lateness. After Manso was late to work, however, ABF decided to discharge preferential casualsthough not other employeeswho were late twice without good cause. Six days later Manso triggered the policy's first application when he arrived at work nearly an hour late for the same shift. Manso telephoned at 5:25 a.m. to explain that he was having car trouble on the highway, and repeated that excuse when he arrived. ABF conducted a prompt investigation, ascertained that he was lying,[3] and fired him for tardiness under its new policy on lateness.
Manso filed a second unfair labor practice charge. In the hearing before the ALJ, Manso repeated his story about the car trouble that preceded his third discharge. The ALJ credited most of his testimony about events surrounding his dismissals, but expressly concluded that Manso lied when he told ABF that car trouble made him late to work. Id., at 600. Accordingly, although the ALJ decided that ABF had illegally discharged Manso the second time because he was a *321 party to the earlier union grievance,[4] the ALJ denied Manso relief for the third discharge based on his finding that ABF had dismissed Manso for cause. Ibid.
The Board affirmed the ALJ's finding that Manso's second discharge was unlawful, but reversed with respect to the third discharge. Id., at 591. Acknowledging that Manso lied to his employer and that ABF presumably could have discharged him for that dishonesty, id., at 590, n. 13, the Board nevertheless emphasized that ABF did not in fact discharge him for lying and that the ALJ's conclusion to the contrary was "a plainly erroneous factual statement of [ABF]'s asserted reasons."[5] Instead, Manso's lie "established only that he did not have a legitimate excuse for the August 17 lateness." Id., at 589. The Board focused primarily on ABF's retroactive application of its lateness policy to include Manso's first time late to work, holding that ABF had "seized upon" Manso's tardiness "as a pretext to discharge him again and for the same unlawful reasons it discharged him on June 19."[6] In addition, though the Board deemed Manso's discharge unlawful even assuming the validity of ABF's general disciplinary treatment of preferential casuals, it observed that ABF's disciplinary approach and lack of uniform rules for all dockworkers "raise[d] more questions than they resolve[d]." Id., at 590. The Board ordered ABF to reinstate Manso with backpay. Id., at 591.
*322 The Court of Appeals enforced the Board's order. Miera v. NLRB, 982 F.2d 441 (CA10 1992). Its review of the record revealed "abundant evidence of antiunion animus in ABF's conduct towards Manso," id., at 446, including "ample evidence" that Manso's third discharge was not for cause, ibid. The court regarded as important the testimony in the record confirming that Manso would not have been discharged under ABF's new tardiness policy had he provided a legitimate excuse. Ibid. The court also rejected ABF's argument that awarding reinstatement and backpay to an employee who lied to his employer and to the ALJ violated public policy.[7] Noting that "Manso's original misrepresentation was made to his employer in an attempt to avoid being fired under a policy the application of which the Board found to be the result of antiunion animus," the court reasoned that the Board had wide discretion to ascertain what remedy best furthered the policies of the National Labor Relations Act (Act). Id., at 447.
II
The question we granted certiorari to review is a narrow one.[8] We assume that the Board correctly found that ABF discharged Manso unlawfully in August 1989. We also assume, more importantly, that the Board did not abuse its discretion in ordering reinstatement even though Manso *323 gave ABF a false reason for being late to work. We are concerned only with the ramifications of Manso's false testimony under oath in a formal proceeding before the ALJ. We recognize that the Board might have decided that such misconduct disqualified Manso from profiting from the proceeding, or it might even have adopted a flat rule precluding reinstatement when a former employee so testifies. As the case comes to us, however, the issue is not whether the Board might adopt such a rule, but whether it must do so.
False testimony in a formal proceeding is intolerable. We must neither reward nor condone such a "flagrant affront" to the truth-seeking function of adversary proceedings. See United States v. Mandujano, 425 U.S. 564, 576-577 (1976). See also United States v. Knox, 396 U.S. 77 (1969); Bryson v. United States, 396 U.S. 64 (1969); Dennis v. United States, 384 U.S. 855 (1966); Kay v. United States, 303 U.S. 1 (1938); United States v. Kapp, 302 U.S. 214 (1937); Glickstein v. United States, 222 U.S. 139, 141-142 (1911). If knowingly exploited by a criminal prosecutor, such wrongdoing is so "inconsistent with the rudimentary demands of justice" that it can vitiate a judgment even after it has become final. Mooney v. Holohan, 294 U.S. 103, 112 (1935). In any proceeding, whether judicial or administrative, deliberate falsehoods "well may affect the dearest concerns of the parties before a tribunal," United States v. Norris, 300 U.S. 564, 574 (1937), and may put the factfinder and parties "to the disadvantage, hindrance, and delay of ultimately extracting the truth by cross examination, by extraneous investigation or other collateral means." Ibid. Perjury should be severely sanctioned in appropriate cases.
ABF submits that the false testimony of a former employee who was the victim of an unfair labor practice should always preclude him from winning reinstatement with backpay. That contention, though not inconsistent with our appraisal of his misconduct, raises countervailing concerns. Most important is Congress' decision to delegate to the *324 Board the primary responsibility for making remedial decisions that best effectuate the policies of the Act when it has substantiated an unfair labor practice. The Act expressly authorizes the Board "to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of [the Act]." 29 U.S. C. § 160(c). Only in cases of discharge for cause does the statute restrict the Board's authority to order reinstatement.[9] This is not such a case.
When Congress expressly delegates to an administrative agency the authority to make specific policy determinations, courts must give the agency's decision controlling weight unless it is "arbitrary, capricious, or manifestly contrary to the statute." Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984). Because this case involves that kind of express delegation, the Board's views merit the greatest deference. This has been our consistent appraisal of the Board's remedial authority throughout its long history of administering the Act.[10] As we explained over a half century ago:
"Because the relation of remedy to policy is peculiarly a matter for administrative competence, courts must not enter the allowable area of the Board's discretion and must guard against the danger of sliding unconsciously from the narrow confines of law into the more spacious domain of policy." Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 194 (1941).
*325 Notwithstanding our concern about the seriousness of Manso's ill-advised decision to repeat under oath his false excuse for tardiness, we cannot say that the Board's remedial order in this case was an abuse of its broad discretion or that it was obligated to adopt a rigid rule that would foreclose relief in all comparable cases. Nor can we fault the Board's conclusions that Manso's reason for being late to work was ultimately irrelevant to whether antiunion animus actually motivated his discharge and that ordering effective relief in a case of this character promotes a vital public interest.
Notably, the ALJ refused to credit the testimony of several ABF witnesses, see, e. g., 304 N. L. R. B., at 598, and the Board affirmed those credibility findings, id., at 585. The unfairness of sanctioning Manso while indirectly rewarding those witnesses' lack of candor is obvious. Moreover, the rule ABF advocates might force the Board to divert its attention from its primary mission and devote unnecessary time and energy to resolving collateral disputes about credibility. Its decision to rely on "other civil and criminal remedies" for false testimony, cf. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 521 (1993), rather than a categorical exception to the familiar remedy of reinstatement is well within its broad discretion.
The judgment of the Court of Appeals is affirmed.
It is so ordered. | Michael Manso gave his employer a false excuse for being late to work and repeated that falsehood while testifying under oath before an Administrative Law Judge (ALJ). Notwithstanding Manso's dishonesty, the National Labor Relations Board (Board) ordered Manso's former employer to reinstate him with backpay. Our interest in preserving the integrity of administrative proceedings prompted us to grant *319 certiorari to consider whether Manso's misconduct should have precluded the Board from granting him that relief. I Manso worked as a casual dockworker at petitioner ABF Freight System, Inc.'s (ABF's) trucking terminal in Albuquerque, New Mexico, from the summer of 1987 to August 1989. He was fired three times. The first time, Manso was 1 of 12 employees discharged in June 1988 in a dispute over a contractual provision relating to so-called "preferential casual" dockworkers.[1] The grievance Manso's union filed eventually secured his reinstatement; Manso also filed an unfair labor practice charge against ABF over the incident. Manso's return to work was short lived. Three supervisors warned him of likely retaliation from top management alerting him, for example, that ABF was "gunning" for him, App. 96, and that "the higher echelon was after [him]," See also ABF Freight System, Inc., 304 N. L. R. B. 585, 592, 597 (1991). Within six weeks ABF discharged Manso for a second time on pretextual grounds ostensibly for failing to respond to a call to work made under a stringent verification procedure ABF had recently imposed upon preferential casuals.[2] Once again, a grievance panel ordered Manso reinstated. *320 Manso's third discharge came less than two months later. On August 11, 1989, Manso arrived four minutes late for the 5 a.m. shift. At the time, ABF had no policy regarding lateness. After Manso was late to work, however, ABF decided to discharge preferential casualsthough not other employeeswho were late twice without good cause. Six days later Manso triggered the policy's first application when he arrived at work nearly an hour late for the same shift. Manso telephoned at 5:25 a.m. to explain that he was having car trouble on the highway, and repeated that excuse when he arrived. ABF conducted a prompt investigation, ascertained that he was lying,[3] and fired him for tardiness under its new policy on lateness. Manso filed a second unfair labor practice charge. In the hearing before the ALJ, Manso repeated his story about the car trouble that preceded his third discharge. The ALJ credited most of his testimony about events surrounding his dismissals, but expressly concluded that Manso lied when he told ABF that car trouble made him late to work. Accordingly, although the ALJ decided that ABF had illegally discharged Manso the second time because he was a *321 party to the earlier union grievance,[4] the ALJ denied Manso relief for the third discharge based on his finding that ABF had dismissed Manso for cause. The Board affirmed the ALJ's finding that Manso's second discharge was unlawful, but reversed with respect to the third discharge. Acknowledging that Manso lied to his employer and that ABF presumably could have discharged him for that dishonesty, the Board nevertheless emphasized that ABF did not in fact discharge him for lying and that the ALJ's conclusion to the contrary was "a plainly erroneous factual statement of [ABF]'s asserted reasons."[5] Instead, Manso's lie "established only that he did not have a legitimate excuse for the August 17 lateness." The Board focused primarily on ABF's retroactive application of its lateness policy to include Manso's first time late to work, holding that ABF had "seized upon" Manso's tardiness "as a pretext to discharge him again and for the same unlawful reasons it discharged him on June 19."[6] In addition, though the Board deemed Manso's discharge unlawful even assuming the validity of ABF's general disciplinary treatment of preferential casuals, it observed that ABF's disciplinary approach and lack of uniform rules for all dockworkers "raise[d] more questions than they resolve[d]." The Board ordered ABF to reinstate Manso with backpay. *322 The Court of Appeals enforced the Board's order. Its review of the record revealed "abundant evidence of antiunion animus in ABF's conduct towards Manso," including "ample evidence" that Manso's third discharge was not for cause, The court regarded as important the testimony in the record confirming that Manso would not have been discharged under ABF's new tardiness policy had he provided a legitimate excuse. The court also rejected ABF's argument that awarding reinstatement and backpay to an employee who lied to his employer and to the ALJ violated public policy.[7] Noting that "Manso's original misrepresentation was made to his employer in an attempt to avoid being fired under a policy the application of which the Board found to be the result of antiunion animus," the court reasoned that the Board had wide discretion to ascertain what remedy best furthered the policies of the National Labor Relations Act (Act). II The question we granted certiorari to review is a narrow one.[8] We assume that the Board correctly found that ABF discharged Manso unlawfully in August 1989. We also assume, more importantly, that the Board did not abuse its discretion in ordering reinstatement even though Manso *323 gave ABF a false reason for being late to work. We are concerned only with the ramifications of Manso's false testimony under oath in a formal proceeding before the ALJ. We recognize that the Board might have decided that such misconduct disqualified Manso from profiting from the proceeding, or it might even have adopted a flat rule precluding reinstatement when a former employee so testifies. As the case comes to us, however, the issue is not whether the Board might adopt such a rule, but whether it must do so. False testimony in a formal proceeding is intolerable. We must neither reward nor condone such a "flagrant affront" to the truth-seeking function of adversary proceedings. See United See also United ; ; ; ; United ; If knowingly exploited by a criminal prosecutor, such wrongdoing is so "inconsistent with the rudimentary demands of justice" that it can vitiate a judgment even after it has become final. In any proceeding, whether judicial or administrative, deliberate falsehoods "well may affect the dearest concerns of the parties before a tribunal," United and may put the factfinder and parties "to the disadvantage, hindrance, and delay of ultimately extracting the truth by cross examination, by extraneous investigation or other collateral means." Perjury should be severely sanctioned in appropriate cases. ABF submits that the false testimony of a former employee who was the victim of an unfair labor practice should always preclude him from winning reinstatement with backpay. That contention, though not inconsistent with our appraisal of his misconduct, raises countervailing concerns. Most important is Congress' decision to delegate to the *324 Board the primary responsibility for making remedial decisions that best effectuate the policies of the Act when it has substantiated an unfair labor practice. The Act expressly authorizes the Board "to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of [the Act]." 29 U.S. C. 160(c). Only in cases of discharge for cause does the statute restrict the Board's authority to order reinstatement.[9] This is not such a case. When Congress expressly delegates to an administrative agency the authority to make specific policy determinations, courts must give the agency's decision controlling weight unless it is "arbitrary, capricious, or manifestly contrary to the statute." Chevron U. S. A. Because this case involves that kind of express delegation, the Board's views merit the greatest deference. This has been our consistent appraisal of the Board's remedial authority throughout its long history of administering the Act.[10] As we explained over a half century ago: "Because the relation of remedy to policy is peculiarly a matter for administrative competence, courts must not enter the allowable area of the Board's discretion and must guard against the danger of sliding unconsciously from the narrow confines of law into the more spacious domain of policy." Phelps Dodge *325 Notwithstanding our concern about the seriousness of Manso's ill-advised decision to repeat under oath his false excuse for tardiness, we cannot say that the Board's remedial order in this case was an abuse of its broad discretion or that it was obligated to adopt a rigid rule that would foreclose relief in all comparable cases. Nor can we fault the Board's conclusions that Manso's reason for being late to work was ultimately irrelevant to whether antiunion animus actually motivated his discharge and that ordering effective relief in a case of this character promotes a vital public interest. Notably, the ALJ refused to credit the testimony of several ABF witnesses, see, e. g., 304 N. L. R. B., at 598, and the Board affirmed those credibility findings, The unfairness of sanctioning Manso while indirectly rewarding those witnesses' lack of candor is obvious. Moreover, the rule ABF advocates might force the Board to divert its attention from its primary mission and devote unnecessary time and energy to resolving collateral disputes about credibility. Its decision to rely on "other civil and criminal remedies" for false testimony, cf. St. Mary's Honor rather than a categorical exception to the familiar remedy of reinstatement is well within its broad discretion. The judgment of the Court of Appeals is affirmed. It is so ordered. |
Justice Powell | dissenting | false | Dowling v. United States | 1985-06-28T00:00:00 | null | https://www.courtlistener.com/opinion/111502/dowling-v-united-states/ | https://www.courtlistener.com/api/rest/v3/clusters/111502/ | 1,985 | 1984-153 | 2 | 6 | 3 | The Court holds today that 18 U.S. C. § 2314 does not apply to this case because the rights of a copyright holder are "different" from the rights of owners of other kinds of property. The Court does not explain, however, how the differences it identifies are relevant either under the language of § 2314 or in terms of the purposes of the statute. Because I believe that the language of § 2314 fairly covers the interstate transportation of goods containing unauthorized use of copyrighted material, I dissent.
Section 2314 provides for criminal penalties against any person who "transports in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud." There is no dispute that the items Dowling transported in interstate commerce bootleg Elvis Presley records are goods, wares, or merchandise. Nor is there a dispute that the records contained copyrighted Elvis Presley performances that Dowling had no right to reproduce and distribute. The only issue here is whether the unauthorized use of a copyright may be "equate[d] with theft, conversion, or fraud" for purposes of § 2314. Ante, at 217. Virtually every court that has considered the question has concluded that § 2314 is broad *230 enough to cover activities such as Dowling's. See, e. g., United States v. Drum, 733 F.2d 1503, 1505-1506 (CA11), cert. denied, 469 U.S. 1061 (1984); United States v. Whetzel, 191 U. S. App. D. C. 184, 187, n. 10, 589 F.2d 707, 710, n. 10 (1978); United States v. Berkwitt, 619 F.2d 649, 656-658 (CA7 1980); United States v. Sam Goody, Inc., 506 F. Supp. 380, 385-391 (EDNY 1981). The only case cited by the Court that lends support to its holding is United States v. Smith, 686 F.2d 234 (CA5 1982).[1] The Court's decision today is thus contrary to the clear weight of authority.
The Court focuses on the fact that "[t]he copyright owner. . . holds no ordinary chattel." Ante, at 216. The Court quite correctly notes that a copyright is "comprise[d] . . . of carefully defined and carefully delimited interests," ibid., and that the copyright owner does not enjoy " `complete control over all possible uses of his work,' " ante, at 217, quoting Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 432 (1984). But among the rights a copyright owner enjoys is the right to publish, copy, and distribute the copyrighted work. Indeed, these rights define virtually the entire scope of an owner's rights in intangible property such as a copyright. Interference with these rights may be "different" from the physical removal of tangible objects, but it is not clear why this difference matters under the terms of § 2314. The statute makes no distinction between tangible and intangible property. The basic goal of the National Stolen Property Act, thwarting the interstate transportation of misappropriated goods, is not served by the judicial imposition of this distinction. Although the rights of copyright owners *231 in their property may be more limited than those of owners of other kinds of property, they are surely "just as deserving of protection . . . ." United States v. Drum, supra, at 1506.
The Court concedes that § 2314 has never been interpreted to require that the goods, wares, or merchandise stolen and transported in violation of the statute remain in unaltered form. Ante, at 216. See also United States v. Bottone, 365 F.2d 389, 393-394 (CA2 1966). It likewise recognizes that the statute is applicable even when the misappropriated item "owes a major portion of its value to an intangible component." Ante, at 216. The difficulty the Court finds with the application of § 2314 here is in finding a theft, conversion, or fraudulent taking, in light of the intangible nature of a copyright. But this difficulty, it seems to me, has more to do with its views on the relative evil of copyright infringement versus other kinds of thievery, than it does with interpretation of the statutory language.
The statutory terms at issue here, i. e., "stolen, converted or taken by fraud," traditionally have been given broad scope by the courts. For example, in United States v. Turley, 352 U.S. 407 (1957), this Court held that the term "stolen" included all felonious takings with intent to deprive the owner of the rights and benefits of ownership, regardless of whether the theft would constitute larceny at common law. Id., at 417. Similarly, in Morissette v. United States, 342 U.S. 246 (1952), the Court stated that conversion "may be consummated without any intent to keep and without any wrongful taking, where the initial possession by the converter was entirely lawful. Conversion may include misuse or abuse of property. It may reach use in an unauthorized manner or to an unauthorized extent of property placed in one's custody for limited use." Id., at 271-272.
Dowling's unauthorized duplication and commercial exploitation of the copyrighted performances were intended to gain for himself the rights and benefits lawfully reserved to the copyright owner. Under Turley, supra, his acts should be *232 viewed as the theft of these performances. Likewise, Dowling's acts constitute the unauthorized use of another's property and are fairly cognizable as conversion under the Court's definition in Morissette.
The Court invokes the familiar rule that a criminal statute is to be construed narrowly. This rule is intended to assure fair warning to the public, e. g., United States v. Bass, 404 U.S. 336, 348 (1971); McBoyle v. United States, 283 U.S. 25, 27 (1931), and is applied when statutory language is ambiguous or inadequate to put persons on notice of what the legislature has made a crime. See, e. g., United States v. Bass, supra; Rewis v. United States, 401 U.S. 808, 812 (1971); Bell v. United States, 349 U.S. 81, 83 (1955). I disagree not with these principles, but with their application to this statute. As I read § 2314, it is not ambiguous, but simply very broad. The statute punishes individuals who transport goods, wares, or merchandise worth $5,000 or more, knowing "the same to have been stolen, converted or taken by fraud." 18 U.S. C. § 2314. As noted above, this Court has given the terms "stolen" and "converted" broad meaning in the past. The petitioner could not have had any doubt that he was committing a theft as well as defrauding the copyright owner.[2]
The Court also emphasizes the fact that the copyright laws contain their own penalties for violation of their terms. But the fact that particular conduct may violate more than one federal law does not foreclose the Government from making a choice as to which of the statutes should be the basis for an indictment. "This Court has long recognized that when an act violates more than one criminal statute, the Government *233 may prosecute under either so long as it does not discriminate against any class of defendants." United States v. Batchelder, 442 U.S. 114, 123-124 (1979).
Finally, Congress implicitly has approved the Government's use of § 2314 to reach conduct like Dowling's. In adopting the Piracy and Counterfeiting Amendments Act of 1982, Pub. L. 97-180, 96 Stat. 91, Congress provided that the new penalties "shall be in addition to any other provisions of title 17 or any other law." 18 U.S. C. § 2319(a) (emphasis added). The Senate Judiciary Committee specifically added the italicized language to clarify that the new provision "supplement[s] existing remedies contained in the copyright law or any other law." S. Rep. No. 97-274, p. 2 (1981) (emphasis added). Many courts had used § 2314 to reach the shipment of goods containing unauthorized use of copyrighted material prior to the enactment of the Piracy and Counterfeiting Amendments Act. By choosing to make its new felony provisions supplemental, Congress implicitly consented to continued application of § 2314 to these offenses.
Dowling and his partners "could not have doubted the criminal nature of their conduct . . . ." United States v. Bottone, supra, at 394. His claim that § 2314 does not reach his clearly unlawful use of copyrighted performances evinces "the sort of sterile formality" properly rejected by the vast majority of courts that have considered the question. United States v. Belmont, 715 F.2d 459, 462 (CA9 1983), cert. denied, 465 U.S. 1022 (1984). Accordingly, I dissent.
| The Court holds today that 18 U.S. C. 2314 does not apply to this case because the rights of a copyright holder are "different" from the rights of owners of other kinds of property. The Court does not explain, however, how the differences it identifies are relevant either under the language of 2314 or in terms of the purposes of the statute. Because I believe that the language of 2314 fairly covers the interstate transportation of goods containing unauthorized use of copyrighted material, I dissent. Section 2314 provides for criminal penalties against any person who "transports in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud." There is no dispute that the items Dowling transported in interstate commerce bootleg Elvis Presley records are goods, wares, or merchandise. Nor is there a dispute that the records contained copyrighted Elvis Presley performances that Dowling had no right to reproduce and distribute. The only issue here is whether the unauthorized use of a copyright may be "equate[d] with theft, conversion, or fraud" for purposes of 2314. Ante, at 217. Virtually every court that has considered the question has concluded that 2314 is broad *230 enough to cover activities such as Dowling's. See, e. g., United (CA11), cert. denied, ; United ; United ; United The only case cited by the Court that lends support to its holding is United[1] The Court's decision today is thus contrary to the clear weight of authority. The Court focuses on the fact that "[t]he copyright owner. holds no ordinary chattel." Ante, at 216. The Court quite correctly notes that a copyright is "comprise[d] of carefully defined and carefully delimited interests," ibid., and that the copyright owner does not enjoy " `complete control over all possible uses of his work,' " ante, at 217, quoting Sony But among the rights a copyright owner enjoys is the right to publish, copy, and distribute the copyrighted work. Indeed, these rights define virtually the entire scope of an owner's rights in intangible property such as a copyright. Interference with these rights may be "different" from the physical removal of tangible objects, but it is not clear why this difference matters under the terms of 2314. The statute makes no distinction between tangible and intangible property. The basic goal of the National Stolen Property Act, thwarting the interstate transportation of misappropriated goods, is not served by the judicial imposition of this distinction. Although the rights of copyright owners *231 in their property may be more limited than those of owners of other kinds of property, they are surely "just as deserving of protection" United The Court concedes that 2314 has never been interpreted to require that the goods, wares, or merchandise stolen and transported in violation of the statute remain in unaltered form. Ante, at 216. See also United It likewise recognizes that the statute is applicable even when the misappropriated item "owes a major portion of its value to an intangible component." Ante, at 216. The difficulty the Court finds with the application of 2314 here is in finding a theft, conversion, or fraudulent taking, in light of the intangible nature of a copyright. But this difficulty, it seems to me, has more to do with its views on the relative evil of copyright infringement versus other kinds of thievery, than it does with interpretation of the statutory language. The statutory terms at issue here, i. e., "stolen, converted or taken by fraud," traditionally have been given broad scope by the courts. For example, in United this Court held that the term "stolen" included all felonious takings with intent to deprive the owner of the rights and benefits of ownership, regardless of whether the theft would constitute larceny at common law. Similarly, in the Court stated that conversion "may be consummated without any intent to keep and without any wrongful taking, where the initial possession by the converter was entirely lawful. Conversion may include misuse or abuse of property. It may reach use in an unauthorized manner or to an unauthorized extent of property placed in one's custody for limited use." Dowling's unauthorized duplication and commercial exploitation of the copyrighted performances were intended to gain for himself the rights and benefits lawfully reserved to the copyright owner. Under his acts should be *232 viewed as the theft of these performances. Likewise, Dowling's acts constitute the unauthorized use of another's property and are fairly cognizable as conversion under the Court's definition in Morissette. The Court invokes the familiar rule that a criminal statute is to be construed narrowly. This rule is intended to assure fair warning to the public, e. g., United ; and is applied when statutory language is ambiguous or inadequate to put persons on notice of what the legislature has made a crime. See, e. g., United ; I disagree not with these principles, but with their application to this statute. As I read 2314, it is not ambiguous, but simply very broad. The statute punishes individuals who transport goods, wares, or merchandise worth $5,000 or more, knowing "the same to have been stolen, converted or taken by fraud." 18 U.S. C. 2314. As noted above, this Court has given the terms "stolen" and "converted" broad meaning in the past. The petitioner could not have had any doubt that he was committing a theft as well as defrauding the copyright owner.[2] The Court also emphasizes the fact that the copyright laws contain their own penalties for violation of their terms. But the fact that particular conduct may violate more than one federal law does not foreclose the Government from making a choice as to which of the statutes should be the basis for an indictment. "This Court has long recognized that when an act violates more than one criminal statute, the Government *233 may prosecute under either so long as it does not discriminate against any class of defendants." United Finally, Congress implicitly has approved the Government's use of 2314 to reach conduct like Dowling's. In adopting the Piracy and Counterfeiting Amendments Act of Stat. 91, Congress provided that the new penalties "shall be in addition to any other provisions of title 17 or any other law." 18 U.S. C. 2319(a) (emphasis added). The Senate Judiciary Committee specifically added the italicized language to clarify that the new provision "supplement[s] existing remedies contained in the copyright law or any other law." S. Rep. No. 97-4, p. 2 (emphasis added). Many courts had used 2314 to reach the shipment of goods containing unauthorized use of copyrighted material prior to the enactment of the Piracy and Counterfeiting Amendments Act. By choosing to make its new felony provisions supplemental, Congress implicitly consented to continued application of 2314 to these offenses. Dowling and his partners "could not have doubted the criminal nature of their conduct" United His claim that 2314 does not reach his clearly unlawful use of copyrighted performances evinces "the sort of sterile formality" properly rejected by the vast majority of courts that have considered the question. United (CA9 19), cert. denied, Accordingly, I dissent. |
Justice Kennedy | majority | false | Department of Transportation v. Association of American Railroads | 2015-03-09T00:00:00 | null | https://www.courtlistener.com/opinion/2784697/department-of-transportation-v-association-of-american-railroads/ | https://www.courtlistener.com/api/rest/v3/clusters/2784697/ | 2,015 | 2014-030 | 2 | 9 | 0 | In 1970, Congress created the National Railroad Pas
senger Corporation, most often known as Amtrak. Later,
Congress granted Amtrak and the Federal Railroad Ad
ministration (FRA) joint authority to issue “metrics and
standards” that address the performance and scheduling
of passenger railroad services. Alleging that the metrics
and standards have substantial and adverse effects upon
its members’ freight services, respondent—the Association
of American Railroads—filed this suit to challenge their
validity. The defendants below, petitioners here, are the
Department of Transportation, the FRA, and two individ
uals sued in their official capacity.
Respondent alleges the metrics and standards must be
invalidated on the ground that Amtrak is a private entity
and it was therefore unconstitutional for Congress to allow
and direct it to exercise joint authority in their issuance.
This argument rests on the Fifth Amendment Due Process
Clause and the constitutional provisions regarding separa
tion of powers. The District Court rejected both of re
2 DEPARTMENT OF TRANSPORTATION v. ASSOCIATION OF
AMERICAN RAILROADS
Opinion of the Court
spondent’s claims. The Court of Appeals for the District of
Columbia Circuit reversed, finding that, for purposes of
this dispute, Amtrak is a private entity and that Congress
violated nondelegation principles in its grant of joint
authority to Amtrak and the FRA. On that premise the
Court of Appeals invalidated the metrics and standards.
Having granted the petition for writ of certiorari, 573
U. S. ___ (2014), this Court now holds that, for purposes of
determining the validity of the metrics and standards,
Amtrak is a governmental entity. Although Amtrak’s
actions here were governmental, substantial questions
respecting the lawfulness of the metrics and standards—
including questions implicating the Constitution’s struc
tural separation of powers and the Appointments Clause,
U. S. Const., Art. II, §2, cl. 2—may still remain in the case.
As those matters have not yet been passed upon by the
Court of Appeals, this case is remanded.
I
A
Amtrak is a corporation established and authorized by a
detailed federal statute enacted by Congress for no less a
purpose than to preserve passenger services and routes on
our Nation’s railroads. See Lebron v. National Railroad
Passenger Corporation, 513 U.S. 374, 383–384 (1995);
National Railroad Passenger Corporation v. Atchison, T. &
S. F. R. Co., 470 U.S. 451, 453–457 (1985); see also Rail
Passenger Service Act of 1970, 84 Stat. 1328. Congress
recognized that Amtrak, of necessity, must rely for most of
its operations on track systems owned by the freight rail
roads. So, as a condition of relief from their common-
carrier duties, Congress required freight railroads to allow
Amtrak to use their tracks and facilities at rates agreed to
by the parties—or in the event of disagreement to be set
by the Interstate Commerce Commission (ICC). See 45
U.S. C. §§561, 562 (1970 ed.). The Surface Transporta
Cite as: 575 U. S. ____ (2015) 3
Opinion of the Court
tion Board (STB) now occupies the dispute-resolution role
originally assigned to the ICC. See 49 U.S. C. §24308(a)
(2012 ed.). Since 1973, Amtrak has received a statutory
preference over freight transportation in using rail lines,
junctions, and crossings. See §24308(c).
The metrics and standards at issue here are the result
of a further and more recent enactment. Concerned by
poor service, unreliability, and delays resulting from
freight traffic congestion, Congress passed the Passenger
Rail Investment and Improvement Act (PRIIA) in 2008.
See 122 Stat. 4907. Section 207(a) of the PRIIA provides
for the creation of the metrics and standards:
“Within 180 days after the date of enactment of this
Act, the Federal Railroad Administration and Amtrak
shall jointly, in consultation with the Surface Trans
portation Board, rail carriers over whose rail lines
Amtrak trains operate, States, Amtrak employees,
nonprofit employee organizations representing
Amtrak employees, and groups representing Amtrak
passengers, as appropriate, develop new or improve
existing metrics and minimum standards for measur
ing the performance and service quality of intercity
passenger train operations, including cost recovery,
on-time performance and minutes of delay, ridership,
on-board services, stations, facilities, equipment, and
other services.” Id., at 4916.
Section 207(d) of the PRIIA further provides:
“If the development of the metrics and standards is
not completed within the 180-day period required by
subsection (a), any party involved in the development
of those standards may petition the Surface Transpor
tation Board to appoint an arbitrator to assist the
parties in resolving their disputes through binding
arbitration.” Id., at 4917.
4 DEPARTMENT OF TRANSPORTATION v. ASSOCIATION OF
AMERICAN RAILROADS
Opinion of the Court
The PRIIA specifies that the metrics and standards
created under §207(a) are to be used for a variety of pur
poses. Section 207(b) requires the FRA to “publish a
quarterly report on the performance and service quality of
intercity passenger train operations” addressing the spe
cific elements to be measured by the metrics and stand
ards. Id., at 4916–4917. Section 207(c) provides that, “[t]o
the extent practicable, Amtrak and its host rail carriers
shall incorporate the metrics and standards developed
under subsection (a) into their access and service agree
ments.” Id., at 4917. And §222(a) obliges Amtrak, within
one year after the metrics and standards are established,
to “develop and implement a plan to improve on-board
service pursuant to the metrics and standards for such
service developed under [§207(a)].” Id., at 4932.
Under §213(a) of the PRIIA, the metrics and standards
also may play a role in prompting investigations by the
STB and in subsequent enforcement actions. For instance,
“[i]f the on-time performance of any intercity passenger
train averages less than 80 percent for any 2 consecutive
calendar quarters,” the STB may initiate an investigation
“to determine whether and to what extent delays . . . are
due to causes that could reasonably be addressed . . . by
Amtrak or other intercity passenger rail operators.” Id.,
at 4925–4926. While conducting an investigation under
§213(a), the STB “has authority to review the accuracy of
the train performance data and the extent to which sched
uling and congestion contribute to delays” and shall “ob
tain information from all parties involved and identify
reasonable measures and make recommendations to im
prove the service, quality, and on-time performance of the
train.” Id., at 4926. Following an investigation, the STB
may award damages if it “determines that delays or fail
ures to achieve minimum standards . . . are attributable to
a rail carrier’s failure to provide preference to Amtrak over
freight transportation.” Ibid. The STB is further empow
Cite as: 575 U. S. ____ (2015) 5
Opinion of the Court
ered to “order the host rail carrier to remit” damages “to
Amtrak or to an entity for which Amtrak operates inter
city passenger rail service.” Ibid.
B
In March 2009, Amtrak and the FRA published a notice
in the Federal Register inviting comments on a draft
version of the metrics and standards. App. 75–76. The
final version of the metrics and standards was issued
jointly by Amtrak and the FRA in May 2010. Id., at 129–
144. The metrics and standards address, among other
matters, Amtrak’s financial performance, its scores on
consumer satisfaction surveys, and the percentage of
passenger-trips to and from underserved communities.
Of most importance for this case, the metrics and stand
ards also address Amtrak’s on-time performance and train
delays caused by host railroads. The standards associated
with the on-time performance metrics require on-time
performance by Amtrak trains at least 80% to 95% of the
time for each route, depending on the route and year. Id.,
at 133–135. With respect to “host-responsible delays”—
that is to say, delays attributed to the railroads along
which Amtrak trains travel—the metrics and standards
provide that “[d]elays must not be more than 900 minutes
per 10,000 Train-Miles.” Id., at 138. Amtrak conductors
determine responsibility for particular delays. Ibid., n. 23.
In the District Court for the District of Columbia, re
spondent alleged injury to its members from being re
quired to modify their rail operations, which mostly in
volve freight traffic, to satisfy the metrics and standards.
Respondent claimed that §207 “violates the nondelegation
doctrine and the separation of powers principle by placing
legislative and rulemaking authority in the hands of a
private entity [Amtrak] that participates in the very in
dustry it is supposed to regulate.” Id., at 176–177, Com
plaint ¶51. Respondent also asserted that §207 violates
6 DEPARTMENT OF TRANSPORTATION v. ASSOCIATION OF
AMERICAN RAILROADS
Opinion of the Court
the Fifth Amendment Due Process Clause by “[v]esting
the coercive power of the government” in Amtrak, an
“interested private part[y].” Id., at 177, ¶¶53–54. In its
prayer for relief respondent sought, among other reme
dies, a declaration of §207’s unconstitutionality and inval
idation of the metrics and standards. Id., at 177.
The District Court granted summary judgment to peti
tioners on both claims. See 865 F. Supp. 2d 22 (DC 2012).
Without deciding whether Amtrak must be deemed pri
vate or governmental, it rejected respondent’s nondelega
tion argument on the ground that the FRA, the STB, and
the political branches exercised sufficient control over
promulgation and enforcement of the metrics and stand
ards so that §207 is constitutional. See id., at 35.
The Court of Appeals for the District of Columbia Cir
cuit reversed the judgment of the District Court as to the
nondelegation and separation of powers claim, reasoning
in central part that because “Amtrak is a private corpora
tion with respect to Congress’s power to delegate . . . au
thority,” it cannot constitutionally be granted the “regula
tory power prescribed in §207.” 721 F.3d 666, 677 (2013).
The Court of Appeals did not reach respondent’s due
process claim. See ibid.
II
In holding that Congress may not delegate to Amtrak
the joint authority to issue the metrics and standards—
authority it described as “regulatory power,” ibid.—the
Court of Appeals concluded Amtrak is a private entity for
purposes of determining its status when considering the
constitutionality of its actions in the instant dispute. That
court’s analysis treated as controlling Congress’ statutory
command that Amtrak “ ‘is not a department, agency, or
instrumentality of the United States Government.’ ” Id.,
at 675 (quoting 49 U.S. C. §24301(a)(3)). The Court of
Appeals also relied on Congress’ pronouncement that
Cite as: 575 U. S. ____ (2015) 7
Opinion of the Court
Amtrak “ ‘shall be operated and managed as a for-profit
corporation.’ ” 721 F.3d, at 675 (quoting §24301(a)(2)); see
also id., at 677 (“Though the federal government’s in
volvement in Amtrak is considerable, Congress has both
designated it a private corporation and instructed that it
be managed so as to maximize profit. In deciding
Amtrak’s status for purposes of congressional delegations,
these declarations are dispositive”). Proceeding from this
premise, the Court of Appeals concluded it was impermis
sible for Congress to “delegate regulatory authority to a
private entity.” Id., at 670; see also ibid. (holding Carter
v. Carter Coal Co., 298 U.S. 238 (1936), prohibits any
such delegation of authority).
That premise, however, was erroneous. Congressional
pronouncements, though instructive as to matters within
Congress’ authority to address, see, e.g., United States
ex rel. Totten v. Bombardier Corp., 380 F.3d 488, 491–492
(CADC 2004) (Roberts, J.), are not dispositive of Amtrak’s
status as a governmental entity for purposes of separation
of powers analysis under the Constitution. And an inde
pendent inquiry into Amtrak’s status under the Constitu
tion reveals the Court of Appeals’ premise was flawed.
It is appropriate to begin the analysis with Amtrak’s
ownership and corporate structure. The Secretary of
Transportation holds all of Amtrak’s preferred stock and
most of its common stock. Amtrak’s Board of Directors is
composed of nine members, one of whom is the Secretary
of Transportation. Seven other Board members are
appointed by the President and confirmed by the Senate.
49 U.S. C. §24302(a)(1). These eight Board members,
in turn, select Amtrak’s president. §24302(a)(1)(B);
§24303(a). Amtrak’s Board members are subject to salary
limits set by Congress, §24303(b); and the Executive
Branch has concluded that all appointed Board members
are removable by the President without cause, see 27 Op.
Atty. Gen. 163 (2003).
8 DEPARTMENT OF TRANSPORTATION v. ASSOCIATION OF
AMERICAN RAILROADS
Opinion of the Court
Under further statutory provisions, Amtrak’s Board
members must possess certain qualifications. Congress
has directed that the President make appointments based
on an individual’s prior experience in the transportation
industry, §24302(a)(1)(C), and has provided that not more
than five of the seven appointed Board members be from
the same political party, §24302(a)(3). In selecting
Amtrak’s Board members, moreover, the President must
consult with leaders of both parties in both Houses of
Congress in order to “provide adequate and balanced
representation of the major geographic regions of the
United States served by Amtrak.” §24302(a)(2).
In addition to controlling Amtrak’s stock and Board of
Directors the political branches exercise substantial,
statutorily mandated supervision over Amtrak’s priorities
and operations. Amtrak must submit numerous annual
reports to Congress and the President, detailing such
information as route-specific ridership and on-time per
formance. §24315. The Freedom of Information Act ap
plies to Amtrak in any year in which it receives a federal
subsidy, 5 U.S. C. §552, which thus far has been every
year of its existence. Pursuant to its status under the
Inspector General Act of 1978 as a “ ‘designated Federal
entity,’ ” 5 U.S. C. App. §8G(a)(2), p. 521, Amtrak must
maintain an inspector general, much like governmental
agencies such as the Federal Communications Commis
sion and the Securities and Exchange Commission. Fur
thermore, Congress conducts frequent oversight hearings
into Amtrak’s budget, routes, and prices. See, e.g., Hear
ing on Reviewing Alternatives to Amtrak’s Annual Losses
in Food and Beverage Service before the Subcommittee on
Government Operations of the House Committee on Over
sight and Government Reform, 113th Cong., 1st Sess., 5
(2013) (statement of Thomas J. Hall, chief of customer
service, Amtrak); Hearing on Amtrak’s Fiscal Year 2014
Budget: The Starting Point for Reauthorization before the
Cite as: 575 U. S. ____ (2015) 9
Opinion of the Court
Subcommittee on Railroads, Pipelines, and Hazardous
Materials of the House Committee on Transportation and
Infrastructure, 113th Cong., 1st Sess., p. 6 (2013) (state
ment of Joseph H. Boardman, president and chief execu
tive officer, Amtrak).
It is significant that, rather than advancing its own
private economic interests, Amtrak is required to pursue
numerous, additional goals defined by statute. To take a
few examples: Amtrak must “provide efficient and effec
tive intercity passenger rail mobility,” 49 U.S. C.
§24101(b); “minimize Government subsidies,” §24101(d);
provide reduced fares to the disabled and elderly,
§24307(a); and ensure mobility in times of national disas
ter, §24101(c)(9).
In addition to directing Amtrak to serve these broad
public objectives, Congress has mandated certain aspects
of Amtrak’s day-to-day operations. Amtrak must main
tain a route between Louisiana and Florida. §24101(c)(6).
When making improvements to the Northeast corridor,
Amtrak must apply seven considerations in a specified
order of priority. §24902(b). And when Amtrak purchases
materials worth more than $1 million, these materials
must be mined or produced in the United States, or manu
factured substantially from components that are mined,
produced, or manufactured in the United States, unless
the Secretary of Transportation grants an exemption.
§24305(f).
Finally, Amtrak is also dependent on federal financial
support. In its first 43 years of operation, Amtrak has
received more than $41 billion in federal subsidies. In
recent years these subsidies have exceeded $1 billion
annually. See Brief for Petitioners 5, and n. 2, 46.
Given the combination of these unique features and its
significant ties to the Government, Amtrak is not an
autonomous private enterprise. Among other important
considerations, its priorities, operations, and decisions are
10 DEPARTMENT OF TRANSPORTATION v. ASSOCIATION OF
AMERICAN RAILROADS
Opinion of the Court
extensively supervised and substantially funded by the
political branches. A majority of its Board is appointed by
the President and confirmed by the Senate and is under
stood by the Executive to be removable by the President at
will. Amtrak was created by the Government, is con
trolled by the Government, and operates for the Govern
ment’s benefit. Thus, in its joint issuance of the metrics
and standards with the FRA, Amtrak acted as a govern
mental entity for purposes of the Constitution’s separation
of powers provisions. And that exercise of governmental
power must be consistent with the design and require
ments of the Constitution, including those provisions
relating to the separation of powers.
Respondent urges that Amtrak cannot be deemed a
governmental entity in this respect. Like the Court of
Appeals, it relies principally on the statutory directives
that Amtrak “shall be operated and managed as a for
profit corporation” and “is not a department, agency, or
instrumentality of the United States Government.”
§§24301(a)(2)–(3). In light of that statutory language,
respondent asserts, Amtrak cannot exercise the joint
authority entrusted to it and the FRA by §207(a).
On that point this Court’s decision in Lebron v. National
Railroad Passenger Corp., 513 U.S. 374 (1995), provides
necessary instruction. In Lebron, Amtrak prohibited an
artist from installing a politically controversial display in
New York City’s Penn Station. The artist sued Amtrak,
alleging a violation of his First Amendment rights. In
response Amtrak asserted that it was not a governmental
entity, explaining that “its charter’s disclaimer of agency
status prevent[ed] it from being considered a Government
entity.” Id., at 392. The Court rejected this contention,
holding “it is not for Congress to make the final determi
nation of Amtrak’s status as a Government entity for
purposes of determining the constitutional rights of citi
zens affected by its actions.” Ibid. To hold otherwise
Cite as: 575 U. S. ____ (2015) 11
Opinion of the Court
would allow the Government “to evade the most solemn
obligations imposed in the Constitution by simply resort
ing to the corporate form.” Id., at 397. Noting that
Amtrak “is established and organized under federal law
for the very purpose of pursuing federal governmental
objectives, under the direction and control of federal gov
ernmental appointees,” id., at 398, and that the Govern
ment exerts its control over Amtrak “not as a creditor but
as a policymaker,” the Court held Amtrak “is an agency or
instrumentality of the United States for the purpose of
individual rights guaranteed against the Government by
the Constitution.” Id., at 394, 399.
Lebron teaches that, for purposes of Amtrak’s status as
a federal actor or instrumentality under the Constitution,
the practical reality of federal control and supervision
prevails over Congress’ disclaimer of Amtrak’s governmen
tal status. Lebron involved a First Amendment question,
while in this case the challenge is to Amtrak’s joint au
thority to issue the metrics and standards. But “[t]he
structural principles secured by the separation of powers
protect the individual as well.” Bond v. United States, 564
U. S. ___, ___ (2011) (slip op., at 10). Treating Amtrak as
governmental for these purposes, moreover, is not an
unbridled grant of authority to an unaccountable actor.
The political branches created Amtrak, control its Board,
define its mission, specify many of its day-to-day opera
tions, have imposed substantial transparency and ac
countability mechanisms, and, for all practical purposes,
set and supervise its annual budget. Accordingly, the
Court holds that Amtrak is a governmental entity, not a
private one, for purposes of determining the constitutional
issues presented in this case.
III
Because the Court of Appeals’ decision was based on the
flawed premise that Amtrak should be treated as a private
12 DEPARTMENT OF TRANSPORTATION v. ASSOCIATION OF
AMERICAN RAILROADS
Opinion of the Court
entity, that opinion is now vacated. On remand, the Court
of Appeals, after identifying the issues that are properly
preserved and before it, will then have the instruction of
the analysis set forth here. Respondent argues that the
selection of Amtrak’s president, who is appointed “not by
the President . . . but by the other eight Board Members,”
“call[s] into question Amtrak’s structure under the Ap
pointments Clause,” Brief for Respondent 42; that
§207(d)’s arbitrator provision “is a plain violation of the
nondelegation principle” and the Appointments Clause
requiring invalidation of §207(a), id., at 26; and that Con
gress violated the Due Process Clause by “giv[ing] a feder
ally chartered, nominally private, for-profit corporation
regulatory authority over its own industry,” id., at 43.
Petitioners, in turn, contend that “the metrics and stand
ards do not reflect the exercise of ‘rulemaking’ authority or
permit Amtrak to ‘regulate other private entities,’ ” and
thus do not raise nondelegation concerns. Reply Brief 5
(internal citation omitted). Because “[o]urs is a court of
final review and not first view,” Zivotofsky v. Clinton, 566
U. S. ___, ___ (2012) (slip op., at 12) (internal quotation
marks omitted), those issues—to the extent they are
properly before the Court of Appeals—should be addressed
in the first instance on remand.
The judgment of the Court of Appeals for the District of
Columbia Circuit is vacated, and the case is remanded for
further proceedings consistent with this opinion.
It is so ordered.
Cite as: 575 U. S. ____ (2015) 1
ALITO, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 13–1080
_________________
DEPARTMENT OF TRANSPORTATION, ET AL.,
PETITIONERS v. | In 1970, Congress created the National Railroad Pas senger Corporation, most often known as Amtrak. Later, Congress granted Amtrak and the Federal Railroad Ad ministration (FRA) joint authority to issue “metrics and standards” that address the performance and scheduling of passenger railroad services. Alleging that the metrics and standards have substantial and adverse effects upon its members’ freight services, respondent—the Association of American Railroads—filed this suit to challenge their validity. The defendants below, petitioners here, are the Department of Transportation, the FRA, and two individ uals sued in their official capacity. Respondent alleges the metrics and standards must be invalidated on the ground that Amtrak is a private entity and it was therefore unconstitutional for Congress to allow and direct it to exercise joint authority in their issuance. This argument rests on the Fifth Amendment Due Process Clause and the constitutional provisions regarding separa tion of powers. The District Court rejected both of re 2 DEPARTMENT OF TRANSPORTATION v. ASSOCIATION OF AMERICAN RAILROADS Opinion of the Court spondent’s claims. The Court of Appeals for the District of Columbia Circuit reversed, finding that, for purposes of this dispute, Amtrak is a private entity and that Congress violated nondelegation principles in its grant of joint authority to Amtrak and the FRA. On that premise the Court of Appeals invalidated the metrics and standards. Having granted the petition for writ of certiorari, 573 U. S. (2014), this Court now holds that, for purposes of determining the validity of the metrics and standards, Amtrak is a governmental entity. Although Amtrak’s actions here were governmental, substantial questions respecting the lawfulness of the metrics and standards— including questions implicating the Constitution’s struc tural separation of powers and the Appointments Clause, U. S. Const., Art. II, cl. 2—may still remain in the case. As those matters have not yet been passed upon by the Court of Appeals, this case is remanded. I A Amtrak is a corporation established and authorized by a detailed federal statute enacted by Congress for no less a purpose than to preserve passenger services and routes on our Nation’s railroads. See ; National Railroad Passenger ; see also Rail Passenger Service Act of 1970, Congress recognized that Amtrak, of necessity, must rely for most of its operations on track systems owned by the freight rail roads. So, as a condition of relief from their common- carrier duties, Congress required freight railroads to allow Amtrak to use their tracks and facilities at rates agreed to by the parties—or in the event of disagreement to be set by the Interstate Commerce Commission (ICC). See 45 U.S. C. 562 (1970 ed.). The Surface Transporta Cite as: 575 U. S. (2015) 3 Opinion of the Court tion Board (STB) now occupies the dispute-resolution role originally assigned to the ICC. See 49 U.S. C. ( ed.). Since 1973, Amtrak has received a statutory preference over freight transportation in using rail lines, junctions, and crossings. See The metrics and standards at issue here are the result of a further and more recent enactment. Concerned by poor service, unreliability, and delays resulting from freight traffic congestion, Congress passed the Passenger Rail Investment and Improvement Act (PRIIA) in 2008. See Section 207(a) of the PRIIA provides for the creation of the metrics and standards: “Within 180 days after the date of enactment of this Act, the Federal Railroad Administration and Amtrak shall jointly, in consultation with the Surface Trans portation Board, rail carriers over whose rail lines Amtrak trains operate, States, Amtrak employees, nonprofit employee organizations representing Amtrak employees, and groups representing Amtrak passengers, as appropriate, develop new or improve existing metrics and minimum standards for measur ing the performance and service quality of intercity passenger train operations, including cost recovery, on-time performance and minutes of delay, ridership, on-board services, stations, facilities, equipment, and other services.” Section 207(d) of the PRIIA further provides: “If the development of the metrics and standards is not completed within the 180-day period required by subsection (a), any party involved in the development of those standards may petition the Surface Transpor tation Board to appoint an arbitrator to assist the parties in resolving their disputes through binding arbitration.” 4 DEPARTMENT OF TRANSPORTATION v. ASSOCIATION OF AMERICAN RAILROADS Opinion of the Court The PRIIA specifies that the metrics and standards created under are to be used for a variety of pur poses. Section 207(b) requires the FRA to “publish a quarterly report on the performance and service quality of intercity passenger train operations” addressing the spe cific elements to be measured by the metrics and stand ards. –4917. Section 207(c) provides that, “[t]o the extent practicable, Amtrak and its host rail carriers shall incorporate the metrics and standards developed under subsection (a) into their access and service agree ments.” And obliges Amtrak, within one year after the metrics and standards are established, to “develop and implement a plan to improve on-board service pursuant to the metrics and standards for such service developed under [].” Under of the PRIIA, the metrics and standards also may play a role in prompting investigations by the STB and in subsequent enforcement actions. For instance, “[i]f the on-time performance of any intercity passenger train averages less than 80 percent for any 2 consecutive calendar quarters,” the STB may initiate an investigation “to determine whether and to what extent delays are due to causes that could reasonably be addressed by Amtrak or other intercity passenger rail operators.” at 4925–4926. While conducting an investigation under the STB “has authority to review the accuracy of the train performance data and the extent to which sched uling and congestion contribute to delays” and shall “ob tain information from all parties involved and identify reasonable measures and make recommendations to im prove the service, quality, and on-time performance of the train.” Following an investigation, the STB may award damages if it “determines that delays or fail ures to achieve minimum standards are attributable to a rail carrier’s failure to provide preference to Amtrak over freight transportation.” The STB is further empow Cite as: 575 U. S. (2015) 5 Opinion of the Court ered to “order the host rail carrier to remit” damages “to Amtrak or to an entity for which Amtrak operates inter city passenger rail service.” B In March 2009, Amtrak and the FRA published a notice in the Federal Register inviting comments on a draft version of the metrics and standards. App. 75–76. The final version of the metrics and standards was issued jointly by Amtrak and the FRA in May 2010. at 129– 144. The metrics and standards address, among other matters, Amtrak’s financial performance, its scores on consumer satisfaction surveys, and the percentage of passenger-trips to and from underserved communities. Of most importance for this case, the metrics and stand ards also address Amtrak’s on-time performance and train delays caused by host railroads. The standards associated with the on-time performance metrics require on-time performance by Amtrak trains at least 80% to 95% of the time for each route, depending on the route and year. at 133–135. With respect to “host-responsible delays”— that is to say, delays attributed to the railroads along which Amtrak trains travel—the metrics and standards provide that “[d]elays must not be more than 900 minutes per 10,000 Train-Miles.” Amtrak conductors determine responsibility for particular delays. n. 23. In the District Court for the District of Columbia, re spondent alleged injury to its members from being re quired to modify their rail operations, which mostly in volve freight traffic, to satisfy the metrics and standards. Respondent claimed that “violates the nondelegation doctrine and the separation of powers principle by placing legislative and rulemaking authority in the hands of a private entity [Amtrak] that participates in the very in dustry it is supposed to regulate.” at 176–177, Com plaint ¶51. Respondent also asserted that violates 6 DEPARTMENT OF TRANSPORTATION v. ASSOCIATION OF AMERICAN RAILROADS Opinion of the Court the Fifth Amendment Due Process Clause by “[v]esting the coercive power of the government” in Amtrak, an “interested private part[y].” ¶¶53–54. In its prayer for relief respondent sought, among other reme dies, a declaration of ’s unconstitutionality and inval idation of the metrics and standards. The District Court granted summary judgment to peti tioners on both claims. See Without deciding whether Amtrak must be deemed pri vate or governmental, it rejected respondent’s nondelega tion argument on the ground that the FRA, the STB, and the political branches exercised sufficient control over promulgation and enforcement of the metrics and stand ards so that is constitutional. See The Court of Appeals for the District of Columbia Cir cuit reversed the judgment of the District Court as to the nondelegation and separation of powers claim, reasoning in central part that because “Amtrak is a private corpora tion with respect to Congress’s power to delegate au thority,” it cannot constitutionally be granted the “regula tory power prescribed in” The Court of Appeals did not reach respondent’s due process claim. See II In holding that Congress may not delegate to Amtrak the joint authority to issue the metrics and standards— authority it described as “regulatory power,” —the Court of Appeals concluded Amtrak is a private entity for purposes of determining its status when considering the constitutionality of its actions in the instant dispute. That court’s analysis treated as controlling Congress’ statutory command that Amtrak “ ‘is not a department, agency, or instrumentality of the United States Government.’ ” at 675 (quoting 49 U.S. C. The Court of Appeals also relied on Congress’ pronouncement that Cite as: 575 U. S. (2015) 7 Opinion of the Court Amtrak “ ‘shall be operated and managed as a for-profit corporation.’ ” (quoting see also at (“Though the federal government’s in volvement in Amtrak is considerable, Congress has both designated it a private corporation and instructed that it be managed so as to maximize profit. In deciding Amtrak’s status for purposes of congressional delegations, these declarations are dispositive”). Proceeding from this premise, the Court of Appeals concluded it was impermis sible for Congress to “delegate regulatory authority to a private entity.” ; see also prohibits any such delegation of authority). That premise, however, was erroneous. Congressional pronouncements, though instructive as to matters within Congress’ authority to address, see, e.g., United States ex rel. 491–492 (CADC 2004) (Roberts, J.), are not dispositive of Amtrak’s status as a governmental entity for purposes of separation of powers analysis under the Constitution. And an inde pendent inquiry into Amtrak’s status under the Constitu tion reveals the Court of Appeals’ premise was flawed. It is appropriate to begin the analysis with Amtrak’s ownership and corporate structure. The Secretary of Transportation holds all of Amtrak’s preferred stock and most of its common stock. Amtrak’s Board of Directors is composed of nine members, one of whom is the Secretary of Transportation. Seven other Board members are appointed by the President and confirmed by the Senate. 49 U.S. C. These eight Board members, in turn, select Amtrak’s president. Amtrak’s Board members are subject to salary limits set by Congress, and the Executive Branch has concluded that all appointed Board members are removable by the President without cause, see 27 Op. Atty. Gen. 163 (2003). 8 DEPARTMENT OF TRANSPORTATION v. ASSOCIATION OF AMERICAN RAILROADS Opinion of the Court Under further statutory provisions, Amtrak’s Board members must possess certain qualifications. Congress has directed that the President make appointments based on an individual’s prior experience in the transportation industry, and has provided that not more than five of the seven appointed Board members be from the same political party, In selecting Amtrak’s Board members, moreover, the President must consult with leaders of both parties in both Houses of Congress in order to “provide adequate and balanced representation of the major geographic regions of the United States served by Amtrak.” In addition to controlling Amtrak’s stock and Board of Directors the political branches exercise substantial, statutorily mandated supervision over Amtrak’s priorities and operations. Amtrak must submit numerous annual reports to Congress and the President, detailing such information as route-specific ridership and on-time per formance. The Freedom of Information Act ap plies to Amtrak in any year in which it receives a federal subsidy, 5 U.S. C. which thus far has been every year of its existence. Pursuant to its status under the Inspector General Act of 1978 as a “ ‘designated Federal entity,’ ” 5 U.S. C. App. p. 521, Amtrak must maintain an inspector general, much like governmental agencies such as the Federal Communications Commis sion and the Securities and Exchange Commission. Fur thermore, Congress conducts frequent oversight hearings into Amtrak’s budget, routes, and prices. See, e.g., Hear ing on Reviewing Alternatives to Amtrak’s Annual Losses in Food and Beverage Service before the Subcommittee on Government Operations of the House Committee on Over sight and Government Reform, 113th Cong., 1st Sess., 5 (statement of Thomas J. Hall, chief of customer service, Amtrak); Hearing on Amtrak’s Fiscal Year 2014 Budget: The Starting Point for Reauthorization before the Cite as: 575 U. S. (2015) 9 Opinion of the Court Subcommittee on Railroads, Pipelines, and Hazardous Materials of the House Committee on Transportation and Infrastructure, 113th Cong., 1st Sess., p. 6 (state ment of Joseph H. Boardman, president and chief execu tive officer, Amtrak). It is significant that, rather than advancing its own private economic interests, Amtrak is required to pursue numerous, additional goals defined by statute. To take a few examples: Amtrak must “provide efficient and effec tive intercity passenger rail mobility,” 49 U.S. C. “minimize Government subsidies,” provide reduced fares to the disabled and elderly, and ensure mobility in times of national disas ter, In addition to directing Amtrak to serve these broad public objectives, Congress has mandated certain aspects of Amtrak’s day-to-day operations. Amtrak must main tain a route between Louisiana and Florida. When making improvements to the Northeast corridor, Amtrak must apply seven considerations in a specified order of priority. And when Amtrak purchases materials worth more than $1 million, these materials must be mined or produced in the United States, or manu factured substantially from components that are mined, produced, or manufactured in the United States, unless the Secretary of Transportation grants an exemption. Finally, Amtrak is also dependent on federal financial support. In its first 43 years of operation, Amtrak has received more than $41 billion in federal subsidies. In recent years these subsidies have exceeded $1 billion annually. See Brief for Petitioners 5, and n. 2, 46. Given the combination of these unique features and its significant ties to the Government, Amtrak is not an autonomous private enterprise. Among other important considerations, its priorities, operations, and decisions are 10 DEPARTMENT OF TRANSPORTATION v. ASSOCIATION OF AMERICAN RAILROADS Opinion of the Court extensively supervised and substantially funded by the political branches. A majority of its Board is appointed by the President and confirmed by the Senate and is under stood by the Executive to be removable by the President at will. Amtrak was created by the Government, is con trolled by the Government, and operates for the Govern ment’s benefit. Thus, in its joint issuance of the metrics and standards with the FRA, Amtrak acted as a govern mental entity for purposes of the Constitution’s separation of powers provisions. And that exercise of governmental power must be consistent with the design and require ments of the Constitution, including those provisions relating to the separation of powers. Respondent urges that Amtrak cannot be deemed a governmental entity in this respect. Like the Court of Appeals, it relies principally on the statutory directives that Amtrak “shall be operated and managed as a for profit corporation” and “is not a department, agency, or instrumentality of the United States Government.” In light of that statutory language, respondent asserts, Amtrak cannot exercise the joint authority entrusted to it and the FRA by On that point this Court’s decision in provides necessary instruction. In Lebron, Amtrak prohibited an artist from installing a politically controversial display in New York City’s Penn Station. The artist sued Amtrak, alleging a violation of his First Amendment rights. In response Amtrak asserted that it was not a governmental entity, explaining that “its charter’s disclaimer of agency status prevent[ed] it from being considered a Government entity.” The Court rejected this contention, holding “it is not for Congress to make the final determi nation of Amtrak’s status as a Government entity for purposes of determining the constitutional rights of citi zens affected by its actions.” To hold otherwise Cite as: 575 U. S. (2015) 11 Opinion of the Court would allow the Government “to evade the most solemn obligations imposed in the Constitution by simply resort ing to the corporate form.” Noting that Amtrak “is established and organized under federal law for the very purpose of pursuing federal governmental objectives, under the direction and control of federal gov ernmental appointees,” and that the Govern ment exerts its control over Amtrak “not as a creditor but as a policymaker,” the Court held Amtrak “is an agency or instrumentality of the United States for the purpose of individual rights guaranteed against the Government by the Constitution.” Lebron teaches that, for purposes of Amtrak’s status as a federal actor or instrumentality under the Constitution, the practical reality of federal control and supervision prevails over Congress’ disclaimer of Amtrak’s governmen tal status. Lebron involved a First Amendment question, while in this case the challenge is to Amtrak’s joint au thority to issue the metrics and standards. But “[t]he structural principles secured by the separation of powers protect the individual as well.” Bond v. United States, 564 U. S. (2011) (slip op., at 10). Treating Amtrak as governmental for these purposes, moreover, is not an unbridled grant of authority to an unaccountable actor. The political branches created Amtrak, control its Board, define its mission, specify many of its day-to-day opera tions, have imposed substantial transparency and ac countability mechanisms, and, for all practical purposes, set and supervise its annual budget. Accordingly, the Court holds that Amtrak is a governmental entity, not a private one, for purposes of determining the constitutional issues presented in this case. III Because the Court of Appeals’ decision was based on the flawed premise that Amtrak should be treated as a private 12 DEPARTMENT OF TRANSPORTATION v. ASSOCIATION OF AMERICAN RAILROADS Opinion of the Court entity, that opinion is now vacated. On remand, the Court of Appeals, after identifying the issues that are properly preserved and before it, will then have the instruction of the analysis set forth here. Respondent argues that the selection of Amtrak’s president, who is appointed “not by the President but by the other eight Board Members,” “call[s] into question Amtrak’s structure under the Ap pointments Clause,” Brief for Respondent 42; that (d)’s arbitrator provision “is a plain violation of the nondelegation principle” and the Appointments Clause requiring invalidation of ; and that Con gress violated the Due Process Clause by “giv[ing] a feder ally chartered, nominally private, for-profit corporation regulatory authority over its own industry,” Petitioners, in turn, contend that “the metrics and stand ards do not reflect the exercise of ‘rulemaking’ authority or permit Amtrak to ‘regulate other private entities,’ ” and thus do not raise nondelegation concerns. Reply Brief 5 (internal citation omitted). Because “[o]urs is a court of final review and not first view,” Zivotofsky v. Clinton, 566 U. S. (slip op., at 12) (internal quotation marks omitted), those issues—to the extent they are properly before the Court of Appeals—should be addressed in the first instance on remand. The judgment of the Court of Appeals for the District of Columbia Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Cite as: 575 U. S. (2015) 1 ALITO, J., concurring SUPREME COURT OF THE UNITED STATES No. 13–1080 DEPARTMENT OF TRANSPORTATION, ET AL., PETITIONERS v. |
Justice Souter | majority | false | Will v. Hallock | 2006-01-18T00:00:00 | null | https://www.courtlistener.com/opinion/145689/will-v-hallock/ | https://www.courtlistener.com/api/rest/v3/clusters/145689/ | 2,006 | 2005-022 | 1 | 9 | 0 | The authority of the Courts of Appeals to review "all final decisions of the district courts," 28 U.S.C. § 1291, includes appellate jurisdiction over "a narrow class of decisions that do not terminate the litigation," but are sufficiently important and collateral to the merits that they should "nonetheless be treated as final," Digital Equipment Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867 (1994) (internal quotation marks omitted). The issue here is whether a refusal to apply the judgment bar of the Federal Tort Claims Act is open to collateral appeal. We hold it is not.
I
The complaint alleges that Susan Hallock owned a computer software business that she and her husband, Richard, operated from home. After information about Richard Hallock's credit card was stolen and used to pay the subscription fee for a child pornography Web site, agents of the United States Customs Service, investigating the Web site, traced *348 the payment to Richard Hallock's card and got a warrant to search the Hallocks' residence. With that authority, they seized the Hallocks' computer equipment, software, and disk drives. No criminal charges were ever brought, but the Government's actions produced a different disaster. When the computer equipment was returned, several of the disk drives were damaged, all of the stored data (including trade secrets and account files) were lost, and the Hallocks were forced out of business.
In July 2002, Susan Hallock and her company brought an action against the United States under the Federal Tort Claims Act, invoking the waiver of sovereign immunity, 28 U.S.C. § 1346, and alleging negligence by the customs agents in executing the search. The merits of the claim were never addressed, for the District Court granted the Government's motion to dismiss, holding that the agents' activities occurred in the course of detaining goods and thus fell within an exception to the Act's waiver of sovereign immunity, § 2680(e). Hallock v. United States, 253 F. Supp. 2d 361 (NDNY 2003).
While the suit against the Government was still pending, Susan Hallock filed this action against the individual agents under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), alleging in her complaint that the agents had damaged her computers and thus deprived her of property including business income in violation of the Due Process Clause of the Fifth Amendment. After the District Court dismissed the first suit against the Government, the agents moved for judgment in the Bivens action, citing the judgment bar of the Tort Claims Act, that "the judgment in an action under [§] 1346(b) of this title shall constitute a complete bar to any action by the claimant, by reason of the same subject matter, against the employee of the government whose act or omission gave rise to the claim." § 2676.
The District Court denied the motion, holding that dismissal of the action against the Government under the Tort *349 Claims Act was solely on a procedural ground, and thus failed to raise the judgment bar. Hallock v. Bonner, 281 F. Supp. 2d 425, 427 (NDNY 2003). The Court of Appeals for the Second Circuit affirmed, after first finding jurisdiction under the collateral order doctrine. Hallock v. Bonner, 387 F.3d 147 (2004). We granted certiorari to consider the judgment bar, 545 U.S. 1103 (2005), but now vacate for want of appellate jurisdiction on the part of the Court of Appeals.
II
The collateral order doctrine, identified with Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), is "best understood not as an exception to the `final decision' rule laid down by Congress in § 1291, but as a `practical construction' of it." Digital Equipment, supra, at 867 (quoting Cohen, supra, at 546). Whereas 28 U.S.C. § 1291 "gives courts of appeals jurisdiction over `all final decisions' of district courts" that are not directly appealable to us, Behrens v. Pelletier, 516 U.S. 299, 305 (1996), the collateral order doctrine accommodates a "small class" of rulings, not concluding the litigation, but conclusively resolving "claims of right separable from, and collateral to, rights asserted in the action," ibid. (internal quotation marks omitted). The claims are "too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." Cohen, supra, at 546.
The requirements for collateral order appeal have been distilled down to three conditions: that an order "`[1] conclusively determine the disputed question, [2] resolve an important issue completely separate from the merits of the action, and [3] be effectively unreviewable on appeal from a final judgment.'" Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993) (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978)). The conditions are "stringent," Digital Equipment, supra, *350 at 868 (citing Midland Asphalt Corp. v. United States, 489 U.S. 794, 799 (1989)), and unless they are kept so, the underlying doctrine will overpower the substantial finality interests § 1291 is meant to further: judicial efficiency, for example, and the "sensible policy `of avoid[ing] the obstruction to just claims that would come from permitting the harassment and cost of a succession of separate appeals from the various rulings to which a litigation may give rise.'" Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374 (1981) (quoting Cobbledick v. United States, 309 U.S. 323, 325 (1940)).
Accordingly, we have not mentioned applying the collateral order doctrine recently without emphasizing its modest scope. See, e. g., Digital Equipment, 511 U.S., at 868 ("[T]he `narrow' exception should stay that way and never be allowed to swallow the general rule that a party is entitled to a single appeal, to be deferred until final judgment has been entered ..." (citation omitted)). And we have meant what we have said; although the Court has been asked many times to expand the "small class" of collaterally appealable orders, we have instead kept it narrow and selective in its membership.
A
Prior cases mark the line between rulings within the class and those outside. On the immediately appealable side are orders rejecting absolute immunity, Nixon v. Fitzgerald, 457 U.S. 731, 742 (1982), and qualified immunity, Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). A State has the benefit of the doctrine to appeal a decision denying its claim to Eleventh Amendment immunity, Puerto Rico Aqueduct, supra, at 144-145, and a criminal defendant may collaterally appeal an adverse ruling on a defense of double jeopardy, Abney v. United States, 431 U.S. 651, 660 (1977).
The examples admittedly raise the lawyer's temptation to generalize. In each case, the collaterally appealing party was vindicating or claiming a right to avoid trial, in satisfaction of the third condition: unless the order to stand trial was *351 immediately appealable, the right would be effectively lost. Those seeking immediate appeal therefore naturally argue that any order denying a claim of right to prevail without trial satisfies the third condition. But this generalization is too easy to be sound and, if accepted, would leave the final order requirement of § 1291 in tatters. We faced this prospect in Digital Equipment, supra, an appeal from an order rescinding a settlement agreement. Petitioner asserted a "`right not to stand trial' requiring protection by way of immediate appeal," analogizing the rescission to a denial of immunity. Id., at 869. We said no, however, lest "every right that could be enforced appropriately by pretrial dismissal [be] loosely . . . described as conferring a `right not to stand trial.'" Id., at 873. Otherwise, "almost every pretrial or trial order might be called `effectively unreviewable' in the sense that relief from error can never extend to rewriting history." Id., at 872.
"Allowing immediate appeals to vindicate every such right would move § 1291 aside for claims that the district court lacks personal jurisdiction, that the statute of limitations has run, that the movant has been denied his Sixth Amendment right to a speedy trial, that an action is barred on claim preclusion principles, that no material fact is in dispute and the moving party is entitled to judgment as a matter of law, or merely that the complaint fails to state a claim. Such motions can be made in virtually every case." Id., at 873 (citations omitted).
B
Since only some orders denying an asserted right to avoid the burdens of trial qualify, then, as orders that cannot be reviewed "effectively" after a conventional final judgment, the cases have to be combed for some further characteristic that merits appealability under Cohen; and as Digital Equipment explained, that something further boils down to "a judgment about the value of the interests that would be *352 lost through rigorous application of a final judgment requirement." 511 U.S., at 878-879 (citing Van Cauwenberghe v. Biard, 486 U.S. 517, 524 (1988)). See also Lauro Lines s.r.l. v. Chasser, 490 U.S. 495, 502 (1989) (SCALIA, J., concurring) ("The importance of the right asserted has always been a significant part of our collateral order doctrine").
Thus, in Nixon, supra, we stressed the "compelling public ends," id., at 758, "rooted in . . . the separation of powers," id., at 749, that would be compromised by failing to allow immediate appeal of a denial of absolute Presidential immunity, id., at 743, 752, n. 32. In explaining collateral order treatment when a qualified immunity claim was at issue in Mitchell, supra, we spoke of the threatened disruption of governmental functions, and fear of inhibiting able people from exercising discretion in public service if a full trial were threatened whenever they acted reasonably in the face of law that is not "clearly established." Id., at 526. Puerto Rico Aqueduct, 506 U.S. 139, explained the immediate appealability of an order denying a claim of Eleventh Amendment immunity by adverting not only to the burdens of litigation but to the need to ensure vindication of a State's dignitary interests. Id., at 146. And although the double jeopardy claim given Cohen treatment in Abney, supra, did not implicate a right to be free of all proceedings whatsoever (since prior jeopardy is essential to the defense), we described the enormous prosecutorial power of the Government to subject an individual "to embarrassment, expense and ordeal . . . compelling him to live in a continuing state of anxiety," id., at 661-662 (internal quotation marks omitted); the only way to alleviate these consequences of the Government's superior position was by collateral order appeal.
In each case, some particular value of a high order was marshaled in support of the interest in avoiding trial: honoring the separation of powers, preserving the efficiency of government and the initiative of its officials, respecting a State's dignitary interests, and mitigating the government's *353 advantage over the individual. That is, it is not mere avoidance of a trial, but avoidance of a trial that would imperil a substantial public interest, that counts when asking whether an order is "effectively" unreviewable if review is to be left until later. Coopers & Lybrand, 437 U.S., at 468 (internal quotation marks omitted).
C
Does the claim of the customs agents in this case serve such a weighty public objective that the judgment bar should be treated as an immunity demanding the protection of a collateral order appeal? One can argue, of course, that if the Bivens action goes to trial the efficiency of Government will be compromised and the officials burdened and distracted, as in the qualified immunity case: if qualified immunity gets Cohen treatment, so should the judgment bar to further litigation in the aftermath of the Government's success under the Tort Claims Act. But the cases are different. Qualified immunity is not the law simply to save trouble for the Government and its employees; it is recognized because the burden of trial is unjustified in the face of a colorable claim that the law on point was not clear when the official took action, and the action was reasonable in light of the law as it was. The nub of qualified immunity is the need to induce officials to show reasonable initiative when the relevant law is not "clearly established," Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); cf. Saucier v. Katz, 533 U.S. 194, 202 (2001); a quick resolution of a qualified immunity claim is essential.
There is, however, no such public interest at stake simply because the judgment bar is said to be applicable. It is not the preservation of initiative but the avoidance of litigation for its own sake that supports the judgment bar, and if simply abbreviating litigation troublesome to Government employees were important enough for Cohen treatment, collateral order appeal would be a matter of right whenever the Government lost a motion to dismiss under the Tort *354 Claims Act, or a federal officer lost one on a Bivens action, or a state official was in that position in a case under 42 U.S.C. § 1983, or Ex parte Young, 209 U.S. 123 (1908). In effect, 28 U.S.C. § 1291 would fade out whenever the Government or an official lost an early round that could have ended the fight.
Another difference between qualified immunity and the judgment bar lies in the bar's essential procedural element. While a qualified immunity claim is timely from the moment an official is served with a complaint, the judgment bar can be raised only after a case under the Tort Claims Act has been resolved in the Government's favor. If a Bivens action alone is brought, there will be no possibility of a judgment bar, nor will there be so long as a Bivens action against officials and a Tort Claims Act against the Government are pending simultaneously (as they were for a time here). In the present case, if Susan Hallock had brought her Bivens action and no other, the agents could not possibly have invoked the judgment bar in claiming a right to be free of trial. The closer analogy to the judgment bar, then, is not immunity but the defense of claim preclusion, or res judicata.
Although the statutory judgment bar is arguably broader than traditional res judicata, it functions in much the same way, with both rules depending on a prior judgment as a condition precedent[*] and neither reflecting a policy that a defendant should be scot free of any liability. The concern behind both rules is a different one, of avoiding duplicative litigation, "multiple suits on identical entitlements or obligations between the same parties." 18 C. Wright, A. Miller, & *355 E. Cooper, Federal Practice and Procedure § 4402, p. 9 (2d ed. 2002) (internal quotation marks omitted). But this rule of respecting a prior judgment by giving a defense against relitigation has not been thought to protect values so great that only immediate appeal can effectively vindicate them. As we indicated in Digital Equipment, in the usual case, absent particular reasons for discretionary appeal by leave of the trial court, a defense of claim preclusion is fairly subordinated to the general policy of deferring appellate review to the moment of final judgment. 511 U.S., at 873.
The judgment bar at issue in this case has no claim to greater importance than the typical defense of claim preclusion; and we hold true to form in deciding what Digital Equipment implied, that an order rejecting the defense of judgment bar under 28 U.S.C. § 2676 cries for no immediate appeal of right as a collateral order.
We vacate the judgment of the Court of Appeals and remand the case with instructions to dismiss the appeal for lack of jurisdiction.
It is so ordered.
| The authority of the Courts of Appeals to review "all final decisions of the district courts," includes appellate jurisdiction over "a narrow class of decisions that do not terminate the litigation," but are sufficiently important and collateral to the merits that they should "nonetheless be treated as final," Digital The issue here is whether a refusal to apply the judgment bar of the Federal Tort Claims Act is open to collateral appeal. We hold it is not. I The complaint alleges that Susan Hallock owned a computer software business that she and her husband, Richard, operated from home. After information about Richard Hallock's credit card was stolen and used to pay the subscription fee for a child pornography Web site, agents of the United States Customs Service, investigating the Web site, traced *348 the payment to Richard Hallock's card and got a warrant to search the Hallocks' residence. With that authority, they seized the Hallocks' computer equipment, software, and disk drives. No criminal charges were ever brought, but the Government's actions produced a different disaster. When the computer equipment was returned, several of the disk drives were damaged, all of the stored data (including trade secrets and account files) were lost, and the Hallocks were forced out of business. In July 2002, Susan Hallock and her company brought an action against the United States under the Federal Tort Claims Act, invoking the waiver of sovereign immunity, and alleging negligence by the customs agents in executing the search. The merits of the claim were never addressed, for the District Court granted the Government's motion to dismiss, holding that the agents' activities occurred in the course of detaining goods and thus fell within an exception to the Act's waiver of sovereign immunity, 2680(e). While the suit against the Government was still pending, Susan Hallock filed this action against the individual agents under alleging in her complaint that the agents had damaged her computers and thus deprived her of property including business income in violation of the Due Process Clause of the Fifth Amendment. After the District Court dismissed the first suit against the Government, the agents moved for judgment in the Bivens action, citing the judgment bar of the Tort Claims Act, that "the judgment in an action under [] 1346(b) of this title shall constitute a complete bar to any action by the claimant, by reason of the same subject matter, against the employee of the government whose act or omission gave rise to the claim." 2676. The District Court denied the motion, holding that dismissal of the action against the Government under the Tort *349 Claims Act was solely on a procedural ground, and thus failed to raise the judgment bar. The Court of Appeals for the Second Circuit affirmed, after first finding jurisdiction under the collateral order doctrine. We granted certiorari to consider the judgment bar, but now vacate for want of appellate jurisdiction on the part of the Court of Appeals. II The collateral order doctrine, identified with is "best understood not as an exception to the `final decision' rule laid down by Congress in 1291, but as a `practical construction' of it." Digital at (quoting ). Whereas "gives courts of appeals jurisdiction over `all final decisions' of district courts" that are not directly appealable to us, the collateral order doctrine accommodates a "small class" of rulings, not concluding the litigation, but conclusively resolving "claims of right separable from, and collateral to, rights asserted in the action," The claims are "too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." The requirements for collateral order appeal have been distilled down to three conditions: that an order "`[1] conclusively determine the disputed question, [2] resolve an important issue completely separate from the merits of the action, and [3] be effectively unreviewable on appeal from a final judgment.'" Puerto Rico and Sewer The conditions are "stringent," Digital *350 at 868 ), and unless they are kept so, the underlying doctrine will overpower the substantial finality interests 1291 is meant to further: judicial efficiency, for example, and the "sensible policy `of avoid[ing] the obstruction to just claims that would come from permitting the harassment and cost of a succession of separate appeals from the various rulings to which a litigation may give rise.'" Firestone Tire & Rubber Accordingly, we have not mentioned applying the collateral order doctrine recently without emphasizing its modest scope. See, e. g., Digital And we have meant what we have said; although the Court has been asked many times to expand the "small class" of collaterally appealable orders, we have instead kept it narrow and selective in its membership. A Prior cases mark the line between rulings within the class and those outside. On the immediately appealable side are orders rejecting absolute immunity, and qualified immunity, A State has the benefit of the doctrine to appeal a decision denying its claim to Eleventh Amendment immunity, Puerto Rico at -145, and a criminal defendant may collaterally appeal an adverse ruling on a defense of double jeopardy, The examples admittedly raise the lawyer's temptation to generalize. In each case, the collaterally appealing party was vindicating or claiming a right to avoid trial, in satisfaction of the third condition: unless the order to stand trial was *351 immediately appealable, the right would be effectively lost. Those seeking immediate appeal therefore naturally argue that any order denying a claim of right to prevail without trial satisfies the third condition. But this generalization is too easy to be sound and, if accepted, would leave the final order requirement of 1291 in tatters. We faced this prospect in Digital an appeal from an order rescinding a settlement agreement. Petitioner asserted a "`right not to stand trial' requiring protection by way of immediate appeal," analogizing the rescission to a denial of immunity. We said no, however, lest "every right that could be enforced appropriately by pretrial dismissal [be] loosely described as conferring a `right not to stand trial.'" Otherwise, "almost every pretrial or trial order might be called `effectively unreviewable' in the sense that relief from error can never extend to rewriting history." "Allowing immediate appeals to vindicate every such right would move 1291 aside for claims that the district court lacks personal jurisdiction, that the statute of limitations has run, that the movant has been denied his Sixth Amendment right to a speedy trial, that an action is barred on claim preclusion principles, that no material fact is in dispute and the moving party is entitled to judgment as a matter of law, or merely that the complaint fails to state a claim. Such motions can be made in virtually every case." B Since only some orders denying an asserted right to avoid the burdens of trial qualify, then, as orders that cannot be reviewed "effectively" after a conventional final judgment, the cases have to be combed for some further characteristic that merits appealability under ; and as Digital explained, that something further boils down to "a judgment about the value of the interests that would be *352 lost through rigorous application of a final judgment requirement." -879 ). See also Lauro Lines ("The importance of the right asserted has always been a significant part of our collateral order doctrine"). Thus, in we stressed the "compelling public ends," "rooted in the separation of powers," that would be compromised by failing to allow immediate appeal of a denial of absolute Presidential immunity, In explaining collateral order treatment when a qualified immunity claim was at issue in we spoke of the threatened disruption of governmental functions, and fear of inhibiting able people from exercising discretion in public service if a full trial were threatened whenever they acted reasonably in the face of law that is not "clearly established." Puerto Rico explained the immediate appealability of an order denying a claim of Eleventh Amendment immunity by adverting not only to the burdens of litigation but to the need to ensure vindication of a State's dignitary interests. And although the double jeopardy claim given treatment in did not implicate a right to be free of all proceedings whatsoever (since prior jeopardy is essential to the defense), we described the enormous prosecutorial power of the Government to subject an individual "to embarrassment, expense and ordeal compelling him to live in a continuing state of anxiety," ; the only way to alleviate these consequences of the Government's superior position was by collateral order appeal. In each case, some particular value of a high order was marshaled in support of the interest in avoiding trial: honoring the separation of powers, preserving the efficiency of government and the initiative of its officials, respecting a State's dignitary interests, and mitigating the government's *353 advantage over the individual. That is, it is not mere avoidance of a trial, but avoidance of a trial that would imperil a substantial public interest, that counts when asking whether an order is "effectively" unreviewable if review is to be left until later. Coopers & Lybrand, 437 U.S., at C Does the claim of the customs agents in this case serve such a weighty public objective that the judgment bar should be treated as an immunity demanding the protection of a collateral order appeal? One can argue, of course, that if the Bivens action goes to trial the efficiency of Government will be compromised and the officials burdened and distracted, as in the qualified immunity case: if qualified immunity gets treatment, so should the judgment bar to further litigation in the aftermath of the Government's success under the Tort Claims Act. But the cases are different. Qualified immunity is not the law simply to save trouble for the Government and its employees; it is recognized because the burden of trial is unjustified in the face of a colorable claim that the law on point was not clear when the official took action, and the action was reasonable in light of the law as it was. The nub of qualified immunity is the need to induce officials to show reasonable initiative when the relevant law is not "clearly established," ; cf. ; a quick resolution of a qualified immunity claim is essential. There is, however, no such public interest at stake simply because the judgment bar is said to be applicable. It is not the preservation of initiative but the avoidance of litigation for its own sake that supports the judgment bar, and if simply abbreviating litigation troublesome to Government employees were important enough for treatment, collateral order appeal would be a matter of right whenever the Government lost a motion to dismiss under the Tort *354 Claims Act, or a federal officer lost one on a Bivens action, or a state official was in that position in a case under 42 U.S.C. 1983, or Ex parte Young, In effect, would fade out whenever the Government or an official lost an early round that could have ended the fight. Another difference between qualified immunity and the judgment bar lies in the bar's essential procedural element. While a qualified immunity claim is timely from the moment an official is served with a complaint, the judgment bar can be raised only after a case under the Tort Claims Act has been resolved in the Government's favor. If a Bivens action alone is brought, there will be no possibility of a judgment bar, nor will there be so long as a Bivens action against officials and a Tort Claims Act against the Government are pending simultaneously (as they were for a time here). In the present case, if Susan Hallock had brought her Bivens action and no other, the agents could not possibly have invoked the judgment bar in claiming a right to be free of trial. The closer analogy to the judgment bar, then, is not immunity but the defense of claim preclusion, or res judicata. Although the statutory judgment bar is arguably broader than traditional res judicata, it functions in much the same way, with both rules depending on a prior judgment as a condition precedent[*] and neither reflecting a policy that a defendant should be scot free of any liability. The concern behind both rules is a different one, of avoiding duplicative litigation, "multiple suits on identical entitlements or obligations between the same parties." 18 C. Wright, A. Miller, & *355 E. Cooper, Federal Practice and Procedure 4402, p. 9 (2d ed. 2002) But this rule of respecting a prior judgment by giving a defense against relitigation has not been thought to protect values so great that only immediate appeal can effectively vindicate them. As we indicated in Digital in the usual case, absent particular reasons for discretionary appeal by leave of the trial court, a defense of claim preclusion is fairly subordinated to the general policy of deferring appellate review to the moment of final judgment. 511 U.S., The judgment bar at issue in this case has no claim to greater importance than the typical defense of claim preclusion; and we hold true to form in deciding what Digital implied, that an order rejecting the defense of judgment bar under 28 U.S.C. 2676 cries for no immediate appeal of right as a collateral order. We vacate the judgment of the Court of Appeals and remand the case with instructions to dismiss the appeal for lack of jurisdiction. It is so ordered. |
Justice Stevens | majority | false | United States Steel Corp. v. Fortner Enterprises, Inc. | 1977-02-22T00:00:00 | null | https://www.courtlistener.com/opinion/109593/united-states-steel-corp-v-fortner-enterprises-inc/ | https://www.courtlistener.com/api/rest/v3/clusters/109593/ | 1,977 | 1976-048 | 1 | 9 | 0 | In exchange for respondent's promise to purchase prefabricated houses to be erected on land near Louisville, Ky., petitioners agreed to finance the cost of acquiring and developing the land. Difficulties arose while the development was in progress, and respondent (Fortner) commenced this treble-damages action, claiming that the transaction was a tying arrangement forbidden by the Sherman Act. Fortner alleged that competition for prefabricated houses (the tied product) was restrained by petitioners' abuse of power over credit (the tying product). A summary judgment in favor of petitioners was reversed by this Court. Fortner Enterprises v. United States Steel Corp., 394 U.S. 495 (Fortner I). We held that the agreement affected a "not insubstantial" amount of commerce in the tied product and that Fortner was entitled to an opportunity to prove that petitioners possessed "appreciable *612 economic power" in the market for the tying product. The question now presented is whether the record supports the conclusion that petitioners had such power in the credit market.[1]
The conclusion that a violation of § 1 of the Sherman Act[2]*613 had been proved was only reached after two trials. At the first trial following our remand, the District Court directed a verdict in favor of Fortner on the issue of liability, and submitted only the issue of damages to the jury. The jury assessed damages, before trebling, of $93,200. The Court of Appeals reversed the directed verdict and remanded for a new trial on liability. 452 F.2d 1095 (CA6 1971), cert. denied, 406 U.S. 919. The parties then waived the jury; the trial judge heard additional evidence, and entered extensive findings of fact which were affirmed on appeal. 523 F.2d 961 (1975). Both courts held that the findings justified the conclusion that petitioners had sufficient economic power in the credit market to make the tying arrangement unlawful.
Before explaining why we disagree with the ultimate conclusion of the courts below, we first describe the tying arrangement and then summarize the findings on the economic-power issue.
I
Only the essential features of the arrangement between the parties need be described. Fortner is a corporation which was activated by an experienced real estate developer for the purpose of buying and improving residential lots. One petitioner, United States Steel Corp., operates a "Home Division" which manufactures and assembles components of prefabricated houses; the second petitioner, the "Credit Corp.," is a wholly owned subsidiary, which provides financing to customers of the Home Division in order to promote sales. Although their common ownership and control make it appropriate to regard the two as a single seller, they sell two separate productsprefabricated houses and credit. The credit extended to Fortner was not merely for the price of the homes. Petitioners agreed to lend Fortner over $2,000,000 in exchange for Fortner's promise to purchase the components of 210 homes for about $689,000. The additional borrowed funds were intended to cover Fortner's cost of acquiring and *614 developing the vacant real estate, and the cost of erecting the houses.
The impact of the agreement on the market for the tied product (prefabricated houses) is not in dispute. On the one hand, there is no claimnor could there bethat the Home Division had any dominance in the prefabricated housing business. The record indicates that it was only moderately successful, and that its sales represented a small fraction of the industry total.[3] On the other hand, we have already held that the dollar value of the sales to respondent was sufficient to meet the "not insubstantial" test described in earlier cases. See 394 U.S., at 501-502. We therefore confine our attention to the source of the tying arrangement petitioners' "economic power" in the credit market.
II
The evidence supporting the conclusion that the Credit Corp. had appreciable economic power in the credit market relates to four propositions: (1) petitioner Credit Corp. and the Home Division were owned by one of the Nation's largest corporations; (2) petitioners entered into tying arrangements with a significant number of customers in addition to Fortner; (3) the Home Division charged respondent a noncompetitive price for its prefabricated homes; and (4) the financing provided to Fortner was "unique," primarily because it covered 100% of Fortner's acquisition and development costs.
The Credit Corp. was established in 1954 to provide financing for customers of the Home Division. The United States Steel Corp. not only provided the equity capital, but also allowed the Credit Corp. to use its credit in order *615 to borrow money from banks at the prime rate. Thus, although the Credit Corp. itself was not a particularly large company, it was supported by a corporate parent with great financial strength.
The Credit Corp.'s loan policies were primarily intended to help the Home Division sell its products.[4] It extended credit only to customers of the Home Division, and over two-thirds of the Home Division customers obtained such financing. With few exceptions, all the loan agreements contained a tying clause comparable to the one challenged in this case. Petitioner's home sales in 1960 amounted to $6,747,353. Since over $4,600,000 of these sales were tied to financing provided by the Credit Corp.,[5] it is apparent that the tying arrangement was used with a number of customers in addition to Fortner.
The least expensive house package that Fortner purchased from the Home Division cost about $3,150. One witness testified that the Home Division's price was $455 higher than the price of comparable components in a conventional home; another witness, to whom the District Court made no reference in its findings, testified that the Home Division's price was $443 higher than a comparable prefabricated product. Whether the price differential was as great as 15% is not entirely clear, but the record does support the conclusion that the contract required Fortner to pay a noncompetitive price for the Home Division's houses.
The finding that the credit extended to Fortner was unique *616 was based on factors emphasized in the testimony of Fortner's expert witness, Dr. Masten, a professor with special knowledge of lending practices in the Kentucky area. Dr. Masten testified that mortgage loans equal to 100% of the acquisition and development cost of real estate were not otherwise available in the Kentucky area; that even though Fortner had a deficit of $16,000, its loan was not guaranteed by a shareholder, officer, or other person interested in its business; and that the interest rate of 6% represented a low rate under prevailing economic conditions.[6] Moreover, he explained that the stable price levels at the time made the risk to the lender somewhat higher than would have been the case in a period of rising prices. Dr. Masten concluded that the terms granted to respondent by the Credit Corp. were so unusual that it was almost inconceivable that the funds could have been acquired from any other source. It is a fair summary of his testimony, and of the District Court's findings, to say that the loan was unique because the lender accepted such a high risk and the borrower assumed such a low cost.
The District Court also found that banks and federally insured savings and loan associations generally were prohibited by law from making 100% land acquisition and development loans, and "that other conventional lenders would not have made such loans at the time in question since they were not prudent loans due to the risk involved." App. 1596.
Accordingly, the District Court concluded "that all of the required elements of an illegal tie-in agreement did exist since the tie-in itself was present, a not insubstantial amount of interstate commerce in the tied product was restrained and the Credit Corporation did possess sufficient economic power or leverage to effect such restraint." Id., at 1602.
*617 III
Without the finding that the financing provided to Fortner was "unique," it is clear that the District Court's findings would be insufficient to support the conclusion that the Credit Corp. possessed any significant economic power in the credit market.
Although the Credit Corp. is owned by one of the Nation's largest manufacturing corporations, there is nothing in the record to indicate that this enabled it to borrow funds on terms more favorable than those available to competing lenders, or that it was able to operate more efficiently than other lending institutions. In short, the affiliation between the petitioners does not appear to have given the Credit Corp. any cost advantage over its competitors in the credit market. Instead, the affiliation was significant only because the Credit Corp. provided a source of funds to customers of the Home Division. That fact tells us nothing about the extent of petitioners' economic power in the credit market.
The same may be said about the fact that loans from the Credit Corp. were used to obtain house sales from Fortner and others. In some tying situations a disproportionately large volume of sales of the tied product resulting from only a few strategic sales of the tying product may reflect a form of economic "leverage" that is probative of power in the market for the tying product. If, as some economists have suggested, the purpose of a tie-in is often to facilitate price discrimination, such evidence would imply the existence of power that a free market would not tolerate.[7] But in this case Fortner was only required to purchase houses for the number of lots for which it received financing. The tying product produced no commitment from Fortner to purchase varying quantities of the tied product over an extended period of time. This record, therefore, does not describe *618 the kind of "leverage" found in some of the Court's prior decisions condemning tying arrangements.[8]
The fact that Fortnerand presumably other Home Division customers as wellpaid a noncompetitive price for houses also lends insufficient support to the judgment of the lower court. Proof that Fortner paid a higher price for the tied product is consistent with the possibility that the financing was unusually inexpensive[9] and that the price for the entire package was equal to, or below, a competitive price. And this possibility is equally strong even though a number of Home Division customers made a package purchase of homes and financing.[10]
*619 The most significant finding made by the District Court related to the unique character of the credit extended to Fortner. This finding is particularly important because the unique character of the tying product has provided critical support for the finding of illegality in prior cases. Thus, the statutory grant of a patent monopoly in International Salt Co. v. United States, 332 U.S. 392; the copyright monopolies in United States v. Paramount Pictures, Inc., 334 U.S. 131, and United States v. Loew's Inc., 371 U.S. 38; and the extensive land holdings in Northern Pacific R. Co. v. United States, 356 U.S. 1,[11] represented tying products that the Court regarded as sufficiently unique to give rise to a presumption of economic power.[12]
*620 As the Court plainly stated in its prior opinion in this case, these decisions do not require that the defendant have a monopoly or even a dominant position throughout the market for a tying product. See 394 U.S., at 502-503. They do, however, focus attention on the question whether the seller has the power, within the market for the tying product, to raise prices or to require purchasers to accept burdensome terms that could not be exacted in a completely competitive market.[13] In short, the question is whether the seller has some advantage not shared by his competitors in the market for the tying product.
Without any such advantage differentiating his product from that of his competitors, the seller's product does not *621 have the kind of uniqueness considered relevant in prior tying-clause cases.[14] The Court made this point explicitly when it remanded this case for trial:
"We do not mean to accept petitioner's apparent argument that market power can be inferred simply because the kind of financing terms offered by a lending company are `unique and unusual.' We do mean, however, that uniquely and unusually advantageous terms can reflect a creditor's unique economic advantages over his competitors." 394 U.S., at 505.
An accompanying footnote explained:
"Uniqueness confers economic power only when other competitors are in some way prevented from offering the distinctive product themselves. Such barriers may be legal, as in the case of patented and copyrighted products, e. g., International Salt; Loew's, or physical, as when the product is land, e. g., Northern Pacific. It is true that the barriers may also be economic, as when competitors are simply unable to produce the distinctive product profitably, but the uniqueness test in such situations is somewhat confusing since the real source of economic power is not the product itself but rather the seller's cost advantage in producing it." Id., at 505 n. 2.
Quite clearly, if the evidence merely shows that credit terms are unique because the seller is willing to accept a lesser profitor to incur greater risksthan its competitors, *622 that kind of uniqueness will not give rise to any inference of economic power in the credit market. Yet this is, in substance, all that the record in this case indicates.
The unusual credit bargain offered to Fortner proves nothing more than a willingness to provide cheap financing in order to sell expensive houses.[15] Without any evidence that the Credit Corp. had some cost advantage over its competitors or could offer a form of financing that was significantly differentiated from that which other lenders could offer if they so electedthe unique character of its financing does not support the conclusion that petitioners had the kind of economic power which Fortner had the burden of proving in order to prevail in this litigation.
The judgment of the Court of Appeals is reversed.
So ordered.
MR. CHIEF JUSTICE BURGER, with whom MR. | In exchange for respondent's promise to purchase prefabricated houses to be erected on land near Louisville, Ky., petitioners agreed to finance the cost of acquiring and developing the land. Difficulties arose while the development was in progress, and respondent (Fortner) commenced this treble-damages action, claiming that the transaction was a tying arrangement forbidden by the Sherman Act. Fortner alleged that competition for prefabricated houses (the tied product) was restrained by petitioners' abuse of power over credit (the tying product). A summary judgment in favor of petitioners was reversed by this Court. Fortner (Fortner I). We held that the agreement affected a "not insubstantial" amount of commerce in the tied product and that Fortner was entitled to an opportunity to prove that petitioners possessed "appreciable *612 economic power" in the market for the tying product. The question now presented is whether the record supports the conclusion that petitioners had such power in the credit market.[1] The conclusion that a violation of 1 of the Sherman Act[2]*613 had been proved was only reached after two trials. At the first trial following our remand, the District Court directed a verdict in favor of Fortner on the issue of liability, and submitted only the issue of damages to the jury. The jury assessed damages, before trebling, of $93,200. The Court of Appeals reversed the directed verdict and remanded for a new trial on liability. cert. denied, Both courts held that the findings justified the conclusion that petitioners had sufficient economic power in the credit market to make the tying arrangement unlawful. Before explaining why we disagree with the ultimate conclusion of the courts below, we first describe the tying arrangement and then summarize the findings on the economic-power issue. I Only the essential features of the arrangement between the parties need be described. Fortner is a corporation which was activated by an experienced real estate developer for the purpose of buying and improving residential lots. One petitioner, United States Steel Corp., operates a "Home Division" which manufactures and assembles components of prefabricated houses; the second petitioner, the "Credit Corp.," is a wholly owned subsidiary, which provides financing to customers of the Home Division in order to promote sales. Although their common ownership and control make it appropriate to regard the two as a single seller, they sell two separate productsprefabricated houses and credit. The credit extended to Fortner was not merely for the price of the homes. Petitioners agreed to lend Fortner over $2,000,000 in exchange for Fortner's promise to purchase the components of 210 homes for about $689,000. The additional borrowed funds were intended to cover Fortner's cost of acquiring and *614 developing the vacant real estate, and the cost of erecting the houses. The impact of the agreement on the market for the tied product (prefabricated houses) is not in dispute. On the one hand, there is no claimnor could there bethat the Home Division had any dominance in the prefabricated housing business. The record indicates that it was only moderately successful, and that its sales represented a small fraction of the industry total.[3] On the other hand, we have already held that the dollar value of the sales to respondent was sufficient to meet the "not insubstantial" test described in earlier cases. See -502. We therefore confine our attention to the source of the tying arrangement petitioners' "economic power" in the credit market. II The evidence supporting the conclusion that the Credit Corp. had appreciable economic power in the credit market relates to four propositions: (1) petitioner Credit Corp. and the Home Division were owned by one of the Nation's largest corporations; (2) petitioners entered into tying arrangements with a significant number of customers in addition to Fortner; (3) the Home Division charged respondent a noncompetitive price for its prefabricated homes; and (4) the financing provided to Fortner was "unique," primarily because it covered 100% of Fortner's acquisition and development costs. The Credit Corp. was established in 1954 to provide financing for customers of the Home Division. The United States Steel Corp. not only provided the equity capital, but also allowed the Credit Corp. to use its credit in order *615 to borrow money from banks at the prime rate. Thus, although the Credit Corp. itself was not a particularly large company, it was supported by a corporate parent with great financial strength. The Credit Corp.'s loan policies were primarily intended to help the Home Division sell its products.[4] It extended credit only to customers of the Home Division, and over two-thirds of the Home Division customers obtained such financing. With few exceptions, all the loan agreements contained a tying clause comparable to the one challenged in this case. Petitioner's home sales in 1960 amounted to $6,747,353. Since over $4,600,000 of these sales were tied to financing provided by the Credit Corp.,[5] it is apparent that the tying arrangement was used with a number of customers in addition to Fortner. The least expensive house package that Fortner purchased from the Home Division cost about $3,150. One witness testified that the Home Division's price was $455 higher than the price of comparable components in a conventional home; another witness, to whom the District Court made no reference in its findings, testified that the Home Division's price was $443 higher than a comparable prefabricated product. Whether the price differential was as great as 15% is not entirely clear, but the record does support the conclusion that the contract required Fortner to pay a noncompetitive price for the Home Division's houses. The finding that the credit extended to Fortner was unique *616 was based on factors emphasized in the testimony of Fortner's expert witness, Dr. Masten, a professor with special knowledge of lending practices in the Kentucky area. Dr. Masten testified that mortgage loans equal to 100% of the acquisition and development cost of real estate were not otherwise available in the Kentucky area; that even though Fortner had a deficit of $16,000, its loan was not guaranteed by a shareholder, officer, or other person interested in its business; and that the interest rate of 6% represented a low rate under prevailing economic conditions.[6] Moreover, he explained that the stable price levels at the time made the risk to the lender somewhat higher than would have been the case in a period of rising prices. Dr. Masten concluded that the terms granted to respondent by the Credit Corp. were so unusual that it was almost inconceivable that the funds could have been acquired from any other source. It is a fair summary of his testimony, and of the District Court's findings, to say that the loan was unique because the lender accepted such a high risk and the borrower assumed such a low cost. The District Court also found that banks and federally insured savings and loan associations generally were prohibited by law from making 100% land acquisition and development loans, and "that other conventional lenders would not have made such loans at the time in question since they were not prudent loans due to the risk involved." App. 1596. Accordingly, the District Court concluded "that all of the required elements of an illegal tie-in agreement did exist since the tie-in itself was present, a not insubstantial amount of interstate commerce in the tied product was restrained and the Credit Corporation did possess sufficient economic power or leverage to effect such restraint." *617 III Without the finding that the financing provided to Fortner was "unique," it is clear that the District Court's findings would be insufficient to support the conclusion that the Credit Corp. possessed any significant economic power in the credit market. Although the Credit Corp. is owned by one of the Nation's largest manufacturing corporations, there is nothing in the record to indicate that this enabled it to borrow funds on terms more favorable than those available to competing lenders, or that it was able to operate more efficiently than other lending institutions. In short, the affiliation between the petitioners does not appear to have given the Credit Corp. any cost advantage over its competitors in the credit market. Instead, the affiliation was significant only because the Credit Corp. provided a source of funds to customers of the Home Division. That fact tells us nothing about the extent of petitioners' economic power in the credit market. The same may be said about the fact that loans from the Credit Corp. were used to obtain house sales from Fortner and others. In some tying situations a disproportionately large volume of sales of the tied product resulting from only a few strategic sales of the tying product may reflect a form of economic "leverage" that is probative of power in the market for the tying product. If, as some economists have suggested, the purpose of a tie-in is often to facilitate price discrimination, such evidence would imply the existence of power that a free market would not tolerate.[7] But in this case Fortner was only required to purchase houses for the number of lots for which it received financing. The tying product produced no commitment from Fortner to purchase varying quantities of the tied product over an extended period of time. This record, therefore, does not describe *618 the kind of "leverage" found in some of the Court's prior decisions condemning tying arrangements.[8] The fact that Fortnerand presumably other Home Division customers as wellpaid a noncompetitive price for houses also lends insufficient support to the judgment of the lower court. Proof that Fortner paid a higher price for the tied product is consistent with the possibility that the financing was unusually inexpensive[9] and that the price for the entire package was equal to, or below, a competitive price. And this possibility is equally strong even though a number of Home Division customers made a package purchase of homes and financing.[10] *619 The most significant finding made by the District Court related to the unique character of the credit extended to Fortner. This finding is particularly important because the unique character of the tying product has provided critical support for the finding of illegality in prior cases. Thus, the statutory grant of a patent monopoly in International Salt ; the copyright monopolies in United and United ; and the extensive land holdings in Northern Pacific R.[11] represented tying products that the Court regarded as sufficiently unique to give rise to a presumption of economic power.[12] *620 As the Court plainly stated in its prior opinion in this case, these decisions do not require that the defendant have a monopoly or even a dominant position throughout the market for a tying product. See -503. They do, however, focus attention on the question whether the seller has the power, within the market for the tying product, to raise prices or to require purchasers to accept burdensome terms that could not be exacted in a completely competitive market.[13] In short, the question is whether the seller has some advantage not shared by his competitors in the market for the tying product. Without any such advantage differentiating his product from that of his competitors, the seller's product does not *621 have the kind of uniqueness considered relevant in prior tying-clause cases.[14] The Court made this point explicitly when it remanded this case for trial: "We do not mean to accept petitioner's apparent argument that market power can be inferred simply because the kind of financing terms offered by a lending company are `unique and unusual.' We do mean, however, that uniquely and unusually advantageous terms can reflect a creditor's unique economic advantages over his competitors." An accompanying footnote explained: "Uniqueness confers economic power only when other competitors are in some way prevented from offering the distinctive product themselves. Such barriers may be legal, as in the case of patented and copyrighted products, e. g., International Salt; Loew's, or physical, as when the product is land, e. g., Northern Pacific. It is true that the barriers may also be economic, as when competitors are simply unable to produce the distinctive product profitably, but the uniqueness test in such situations is somewhat confusing since the real source of economic power is not the product itself but rather the seller's cost advantage in producing it." at 505 n. 2. Quite clearly, if the evidence merely shows that credit terms are unique because the seller is willing to accept a lesser profitor to incur greater risksthan its competitors, *622 that kind of uniqueness will not give rise to any inference of economic power in the credit market. Yet this is, in substance, all that the record in this case indicates. The unusual credit bargain offered to Fortner proves nothing more than a willingness to provide cheap financing in order to sell expensive houses.[15] Without any evidence that the Credit Corp. had some cost advantage over its competitors or could offer a form of financing that was significantly differentiated from that which other lenders could offer if they so electedthe unique character of its financing does not support the conclusion that petitioners had the kind of economic power which Fortner had the burden of proving in order to prevail in this litigation. The judgment of the Court of Appeals is reversed. So ordered. MR. CHIEF JUSTICE BURGER, with whom MR. |
Justice Blackmun | majority | false | Logan v. Zimmerman Brush Co. | 1982-03-02T00:00:00 | null | https://www.courtlistener.com/opinion/110657/logan-v-zimmerman-brush-co/ | https://www.courtlistener.com/api/rest/v3/clusters/110657/ | 1,982 | 1981-050 | 2 | 9 | 0 | []
The issue in this case is whether a State may terminate a complainant's cause of action because a state official, for reasons beyond the complainant's control, failed to comply with a statutorily mandated procedure.
I
A
The Illinois Fair Employment Practices Act (FEPA or Act), Ill. Rev. Stat., ch. 48, ¶ 851 et seq. (1979), barred employment discrimination on the basis of "physical . . . handicap unrelated to ability." ¶ 853(a). It also established a comprehensive scheme for adjudicating allegations of discrimination. To begin the process, a complainant had to bring a charge of unlawful conduct before the Illinois Fair Employment Practices Commission (Commission) within 180 days of the occurrence of the allegedly discriminatory act. ¶ 858(a). The statute in the provision directly at issue here then gave the Commission 120 days within which to convene a factfinding conference designed to obtain evidence, ascertain the positions of the parties, and explore the possibility of a negotiated settlement. ¶ 858(b). If the Commission found "substantial evidence" of illegal conduct, it was to attempt to "eliminate the effect thereof . . . by means of *425 conference and conciliation," ¶ 858(c), and, if that proved impossible, to issue a formal complaint against the employer within 180 days after the expiration of the 120-day period. ¶ 858(d). A formal adversary hearing was then to be held before a commissioner or duly appointed adjudicator, who was to make findings and who was empowered to recommend reinstatement, backpay, and reasonable attorney's fees. ¶ 858.01. If the commissioner or adjudicator did not find substantial evidence of discrimination, he was to recommend dismissal of the charge. Ibid.
The findings and recommended order were to be filed with the Commission. A complainant was entitled to obtain review by the full Commission of any of the possible dispositions of his charge, including an initial determination that the evidence did not justify a complaint. The Commission was to file a written order and decision. ¶ 858.02; Illinois Fair Employment Practices Commission, Rules and Regulations, § 4.5 (1979). If still not satisfied, the complainant could seek judicial review of any Commission order. ¶ 860.[1]
*426 B
On November 9, 1979, appellant Laverne L. Logan, a probationary employee hired one month previously, was discharged by appellee Zimmerman Brush Company, purportedly because Logan's short left leg made it impossible for him to perform his duties as a shipping clerk. Five days later, Logan, acting pro se, filed a charge with the Commission alleging that his employment had been unlawfully terminated because of his physical handicap. App. 3. This triggered the Commission's statutory obligation under ¶ 858(b) to convene a factfinding conference within 120 days; in Logan's case, this meant by March 13, 1980. Apparently through inadvertence, the Commission's representative scheduled the conference for March 18, five days after expiration of the statutory period. Notice of the meeting, which was mailed to both parties in January 1980, specified the hearing's date and location and declared that attendance was "required." It, however, did not allude to the FEPA's 120-day time limit. App. 5. The Commission also asked the company to complete a short questionnaire concerning its employment practices, and directed that it submit its answers by March 10. Ibid. The company did this without objection.
When the conference date arrived, the company moved that Logan's charge be dismissed because the Commission had failed to hold the conference within the statutorily mandated 120-day period. Id., at 12. This request was rejected. Id., at 16. The company thereupon petitioned the Supreme Court of Illinois for an original writ of prohibition. That court stayed proceedings on Logan's complaint pending decision on the request for a writ. Id., at 24. Logan meanwhile obtained counsel, and because 180 days had not yet passed since the occurrence of the allegedly discriminatory act filed a second charge with the Commission. Id., at 26.
Before the Illinois Supreme Court, Logan argued that terminating his claim because of the Commission's failure to convene a timely conference a matter beyond Logan's, or indeed *427 the company's, control would violate his federal rights to due process and equal protection of the laws. But the court noted that the statutory provision at issue, ¶ 858(b), declared: "Within 120 days of the proper filing of a charge, the Commission shall convene a fact finding conference. . . ." (Emphasis added.) The Illinois court found this legislative language to be mandatory, and accordingly it held that failure to comply deprived the Commission of jurisdiction to consider Logan's charge. Zimmerman Brush Co. v. Fair Employment Practices Comm'n, 82 Ill. 2d 99, 411 N.E.2d 277 (1980).
The court found controlling its decision in Springfield-Sangamon County Regional Planning Comm'n v. Fair Employment Practices Comm'n, 71 Ill. 2d 61, 373 N.E.2d 1307 (1978),[2] where it had determined that ¶ 858(c)'s 180-day deadline for issuing a complaint was mandatory; since the state legislature wrote ¶ 858(b) after the Springfield-Sangamon decision, and used language similar to that employed in ¶ 858(c), it must have intended the 120-day time limit to be jurisdictional as well. This result, reasoned the court, comported with the statute's purposes by facilitating the "just and expeditious resolutions of employment disputes," 82 Ill. 2d, at 107, 411 N. E. 2d, at 282, while protecting employers " `from unfounded charges of discrimination,' " id., at 106, 411 N.E.2d, at 281, quoting ¶ 851.
The Illinois Supreme Court summarily rejected Logan's argument that his due process and equal protection rights would be violated were the Commission's error allowed to extinguish his cause of action. The state legislature had established the right to redress for discriminatory employment practices, it was said, and "[t]he legislature could establish reasonable procedures to be followed upon a charge . . . ." *428 Id., at 108, 411 N.E.2d, at 282. The court then went on to rule that Logan could not file a second charge with the Commission based upon the same act of alleged discrimination, for to allow the second complaint to proceed would circumvent the design of the Act and frustrate the public interest in an expeditious resolution of disputes.[3]Id., at 108-109, 411 N.E.2d, at 282-283.
Logan appealed, bringing his federal claims to this Court. We noted probable jurisdiction. 450 U.S. 909 (1981).
II
A
Justice Jackson, writing for the Court in Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950), observed: "Many controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case." Id., at 313. At the outset, then, we are faced with what has become a familiar two-part inquiry: we must determine whether Logan was deprived of a protected interest, and, if so, what process was his due.
The first question, we believe, was affirmatively settled by the Mullane case itself, where the Court held that a cause of action is a species of property protected by the Fourteenth Amendment's Due Process Clause.[4] There, the Court confronted a challenge to a state law that provided for the settlement *429 of common trust fund accounts by fiduciaries, upon notice given through newspaper publication. The effect of the statute was to terminate "every right which beneficiaries would otherwise have against the trust company . . . for improper management of the common trust fund." Id., at 311. This, the Court concluded, worked to deprive the beneficiaries of property by, among other things, "cut[ting] off their rights to have the trustee answer for negligent or illegal impairments of their interests." Id., at 313. Such a result was impermissible unless constitutionally adequate notice and hearing procedures were established before the settlement process went into effect. Id., at 315. Despite appellee Zimmerman Brush Company's arguments to the contrary, we see no meaningful distinction between the cause of action at issue in Mullane and Logan's right to use the FEPA's adjudicatory procedures.
This conclusion is hardly a novel one. The Court traditionally has held that the Due Process Clauses protect civil litigants who seek recourse in the courts, either as defendants hoping to protect their property or as plaintiffs attempting to redress grievances. In Societe Internationale v. Rogers, 357 U.S. 197 (1958), for example where a plaintiff's claim had been dismissed for failure to comply with a trial court's order the Court read the "property" component of the Fifth Amendment's Due Process Clause to impose "constitutional limitations upon the power of courts, even in aid of their own valid processes, to dismiss an action without affording a party the opportunity for a hearing on the merits of his cause." Id., at 209. See also Hammond Packing Co. v. Arkansas, 212 U.S. 322, 349-351 (1909) (power to enter default judgment); Hovey v. Elliott, 167 U.S. 409 (1897) (same); Windsor v. McVeigh, 93 U.S. 274 (1876) (same). Cf. Wolff v. McDonnell, 418 U.S. 539, 558 (1974). Similarly, the Fourteenth Amendment's Due Process Clause has been interpreted as preventing the States from denying potential litigants use of established adjudicatory procedures, when such *430 an action would be "the equivalent of denying them an opportunity to be heard upon their claimed right[s]." Boddie v. Connecticut, 401 U.S. 371, 380 (1971).[5]
In any event, the view that Logan's FEPA claim is a constitutionally protected one follows logically from the Court's more recent cases analyzing the nature of a property interest. The hallmark of property, the Court has emphasized, is an individual entitlement grounded in state law, which cannot be removed except "for cause." Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 11-12 (1978); Goss v. Lopez, 419 U.S. 565, 573-574 (1975); Board of Regents v. Roth, 408 U.S. 564, 576-578 (1972). Once that characteristic is found, the types of interests protected as "property" are varied and, as often as not, intangible, relating "to the whole domain of social and economic fact." National Mutual Insurance Co. v. Tidewater Transfer Co., 337 U.S. 582, 646 (1949) (Frankfurter, J., dissenting); Arnett v. Kennedy, 416 U.S. 134, *431 207-208, and n. 2 (1974) (MARSHALL, J., dissenting); Board of Regents v. Roth, 408 U. S., at 571-572, 576-577. See, e. g., Barry v. Barchi, 443 U.S. 55 (1979) (horse trainer's license protected); Memphis Light, Gas & Water Div. v. Craft, supra (utility service); Mathews v. Eldridge, 424 U.S. 319 (1976) (disability benefits); Goss v. Lopez, supra (high school education); Connell v. Higginbotham, 403 U.S. 207 (1971) (government employment); Bell v. Burson, 402 U.S. 535 (1971) (driver's license); Goldberg v. Kelly, 397 U.S. 254 (1970) (welfare benefits).
The right to use the FEPA's adjudicatory procedures shares these characteristics. A claimant has more than an abstract desire or interest in redressing his grievance: his right to redress is guaranteed by the State, with the adequacy of his claim assessed under what is, in essence, a "for cause" standard, based upon the substantiality of the evidence. And an FEPA claim, which presumably can be surrendered for value, is at least as substantial as the right to an education labeled as property in Goss v. Lopez, supra.[6] Certainly, it would require a remarkable reading of a "broad and majestic ter[m]," Board of Regents v. Roth, 408 U. S., at 571, to conclude that a horse trainer's license is a protected property interest under the Fourteenth Amendment, while a state-created right to redress discrimination is not.
The Illinois Supreme Court nevertheless seemed to believe that no individual entitlement could come into being under the FEPA until the Commission took appropriate action within the statutory deadline. Because the entitlement arises from statute, the court reasoned, it was the legislature's *432 prerogative to establish the "procedures to be followed upon a charge." 82 Ill. 2d, at 108, 411 N.E.2d, at 282. This analysis, we believe, misunderstands the nature of the Constitution's due process guarantee.
Each of our due process cases has recognized, either explicitly or implicitly, that because "minimum [procedural] requirements [are] a matter of federal law, they are not diminished by the fact that the State may have specified its own procedures that it may deem adequate for determining the preconditions to adverse official action." Vitek v. Jones, 445 U.S. 480, 491 (1980). See Arnett v. Kennedy, 416 U. S., at 166-167 (POWELL, J., concurring in part); id., at 211 (MARSHALL, J., dissenting). Indeed, any other conclusion would allow the State to destroy at will virtually any state-created property interest. The Court has considered and rejected such an approach: " `While the legislature may elect not to confer a property interest, . . . it may not constitutionally authorize the deprivation of such an interest, once conferred, without appropriate procedural safeguards. . . . [T]he adequacy of statutory procedures for deprivation of a statutorily created property interest must be analyzed in constitutional terms.' " Vitek v. Jones, 445 U. S., at 490-491, n. 6, quoting Arnett v. Kennedy, 416 U. S., at 167 (opinion concurring in part).
Of course, the State remains free to create substantive defenses or immunities for use in adjudication or to eliminate its statutorily created causes of action altogether just as it can amend or terminate its welfare or employment programs. The Court held as much in Martinez v. California, 444 U.S. 277 (1980), where it upheld a California statute granting officials immunity from certain types of state tort claims. We acknowledged that the grant of immunity arguably did deprive the plaintiffs of a protected property interest. But they were not thereby deprived of property without due process, just as a welfare recipient is not deprived of due process when the legislature adjusts benefit levels. Cf. *433 U. S. Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 174 (1980); Hisquierdo v. Hisquierdo, 439 U.S. 572, 575 (1979); Flemming v. Nestor, 363 U.S. 603, 609-610 (1960); Chase Securities Corp. v. Donaldson, 325 U.S. 304, 312, n. 8, 315-316 (1945). In each case, the legislative determination provides all the process that is due, see Bi-Metallic Investment Co. v. State Bd. of Equalization, 239 U.S. 441, 445-446 (1915); it "remain[s] true that the State's interest in fashioning its own rules of tort law is paramount to any discernible federal interest, except perhaps an interest in protecting the individual citizen from state action that is wholly arbitrary or irrational." Martinez v. California, 444 U. S., at 282. Indeed, as was acknowledged in Martinez, it may well be that a substantive "immunity defense, like an element of the tort claim itself, is merely one aspect of the State's definition of that property interest." Id., at 282, n. 5. Cf. Ferri v. Ackerman, 444 U.S. 193, 198 (1979).
The 120-day limitation in the FEPA, ¶ 858(b), of course, involves no such thing. It is a procedural limitation on the claimant's ability to assert his rights, not a substantive element of the FEPA claim. Because the state scheme has deprived Logan of a property right, then, we turn to the determination of what process is due him.
B
As our decisions have emphasized time and again, the Due Process Clause grants the aggrieved party the opportunity to present his case and have its merits fairly judged. Thus it has become a truism that "some form of hearing" is required before the owner is finally deprived of a protected property interest. Board of Regents v. Roth, 408 U. S., at 570-571, n. 8 (emphasis in original). And that is why the Court has stressed that, when a "statutory scheme makes liability an important factor in the State's determination . . . , the State may not, consistent with due process, eliminate consideration of that factor in its prior hearing." Bell v. Burson, 402 *434 U. S., at 541. To put it as plainly as possible, the State may not finally destroy a property interest without first giving the putative owner an opportunity to present his claim of entitlement.[7] See id., at 542.
On the other hand, the Court has acknowledged that the timing and nature of the required hearing[8] "will depend on appropriate accommodation of the competing interests involved." Goss v. Lopez, 419 U. S., at 579. These include the importance of the private interest and the length or finality of the deprivation, see Memphis Light, Gas & Water Div. v. Craft, 436 U. S., at 19, and Mathews v. Eldridge, 424 U. S., at 334-335; the likelihood of governmental error, see id., at 335; and the magnitude of the governmental interests involved, see ibid., and Wolff v. McDonnell, 418 U. S., at 561-563.
Each of these factors leads us to conclude that appellant Logan is entitled to have the Commission consider the merits of his charge, based upon the substantiality of the available evidence, before deciding whether to terminate his claim. Logan's interests in retaining his employment, in disproving his employer's charges of incompetence or inability, and more intangibly in redressing an instance of alleged discrimination, are all substantial. At the same time, the deprivation here is final; Logan, unlike a claimant whose charge is dismissed on the merits for lack of evidence, cannot obtain judicial review of the Commission action. A system or procedure that deprives persons of their claims in a random manner, as is apparently true of ¶ 858(b), necessarily *435 presents an unjustifiably high risk that meritorious claims will be terminated. And the State's interest in refusing Logan's procedural request is, on this record, insubstantial.
There has been no suggestion that any great number of claimants are in Logan's position, or that directing the State to consider the merits of Logan's claim will be unduly burdensome. In any event, the State by statute has eliminated the mandatory hearing requirement, see n. 1, supra, demonstrating that it no longer has any appreciable interest in defending the procedure at issue.
Despite appellee Zimmerman Brush Company's arguments, the recent decision in Parratt v. Taylor, 451 U.S. 527 (1981), is not to the contrary. There, a state employee negligently lost a prisoner's hobby kit; while the Court concluded that the prisoner had suffered a deprivation of property within the meaning of the Fourteenth Amendment, it held that all the process due was provided by the State's tort claims procedure. In such a situation, the Court observed, "[i]t is difficult to conceive of how the State could provide a meaningful hearing before the deprivation takes place." Id., at 541. The company suggests that Logan is complaining of the same type of essentially negligent deprivation, and that he therefore should be remitted to the tort remedies provided by the Illinois Court of Claims Act, Ill. Rev. Stat., ch. 37, ¶ 439.1 et seq. (1979). That statute allows an action "against the State for damages in cases sounding in tort, if a like cause of action would lie against a private person." ¶ 439.8(d).[9]
This argument misses Parratt's point. In Parratt, the Court emphasized that it was dealing with "a tortious loss of. . . property as a result of a random and unauthorized act by *436 a state employee . . . not a result of some established state procedure." 451 U.S., at 541. Here, in contrast, it is the state system itself that destroys a complainant's property interest, by operation of law, whenever the Commission fails to convene a timely conference whether the Commission's action is taken through negligence, maliciousness, or otherwise. Parratt was not designed to reach such a situation. See id., at 545 (second concurring opinion). Unlike the complainant in Parratt, Logan is challenging not the Commission's error, but the "established state procedure" that destroys his entitlement without according him proper procedural safeguards.
In any event, the Court's decisions suggest that, absent "the necessity of quick action by the State or the impracticality of providing any predeprivation process," a postdeprivation hearing here would be constitutionally inadequate. Parratt, 451 U. S., at 539. See Memphis Light, Gas & Water Div. v. Craft, 436 U. S., at 19-20; Board of Regents v. Roth, 408 U. S., at 570, n. 7; Bell v. Burson, 402 U. S., at 542; Boddie v. Connecticut, 401 U. S., at 379. Cf. Barry v. Barchi, 443 U. S., at 64-65 (post-termination hearing permitted where the decision to terminate was based on a reliable pretermination finding); Mathews v. Eldridge, 424 U. S., at 343-347 (same). That is particularly true where, as here, the State's only post-termination process comes in the form of an independent tort action.[10] Seeking redress through a *437 tort suit is apt to be a lengthy and speculative process, which in a situation such as this one will never make the complainant entirely whole: the Illinois Court of Claims Act does not provide for reinstatement as appellee Zimmerman Brush Company conceded at oral argument, Tr. of Oral Arg. 39 and even a successful suit will not vindicate entirely Logan's right to be free from discriminatory treatment.
Obviously, nothing we have said entitles every civil litigant to a hearing on the merits in every case. The State may erect reasonable procedural requirements for triggering the right to an adjudication, be they statutes of limitations, cf. Chase Securities Corp. v. Donaldson, 325 U. S., at 314-316, or, in an appropriate case, filing fees. United States v. Kras, 409 U.S. 434 (1973). And the State certainly accords due process when it terminates a claim for failure to comply with a reasonable procedural or evidentiary rule. Hammond Packing Co. v. Arkansas, 212 U. S., at 351; Windsor v. McVeigh, 93 U. S., at 278. What the Fourteenth Amendment does require, however, "is `an opportunity . . . granted at a meaningful time and in a meaningful manner,' Armstrong v. Manzo, 380 U.S. 545, 552 (1965) (emphasis added), `for [a] hearing appropriate to the nature of the case,' Mullane v. Central Hanover Tr. Co., supra, at 313." Boddie v. Connecticut, 401 U. S., at 378. It is such an opportunity that Logan was denied.
*438 III
The judgment of the Supreme Court of Illinois, accordingly, is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
JUSTICE BLACKMUN, with whom JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE O'CONNOR join.
The Court's opinion, ante, considers appellant Logan's due process claim and decides that issue in his favor. As has been noted, Logan also raised an equal protection claim and that issue has been argued and briefed here. Although the Court considered that it was unnecessary to discuss and dispose of the equal protection claim when the due process issue was being decided in Logan's favor, I regard the equal protection issue as sufficiently important to require comment on my part,[1] particularly inasmuch as a majority of the Members of the Court are favorably inclined toward the claim, although, to be sure, that majority is not the one that constitutes the Court for the controlling opinion.
On its face, Logan's equal protection claim is an unconventional one. The Act's ¶ 858(b) establishes no explicit classifications and does not expressly distinguish between claimants, and the company therefore argues that Logan has no more been deprived of equal protection than anyone would be who is injured by a random act of governmental misconduct. As the Illinois Supreme Court interpreted the statute, however, ¶ 858(b) unambiguously divides claims and thus, necessarily, claimants into two discrete groups that are accorded radically disparate treatment. Claims processed within 120 days are given full consideration on the merits, *439 and complainants bringing such charges are awarded the opportunity for full administrative and judicial review. In contrast, otherwise identical claims that do not receive a hearing within the statutory period are unceremoniously, and finally, terminated. Because the Illinois court recognized, in so many words, that the FEPA establishes two categories of claims, one may proceed to determine whether the classification drawn by the statute is consistent with the Fourteenth Amendment.
For over a century, the Court has engaged in a continuing and occasionally almost metaphysical effort to identify the precise nature of the Equal Protection Clause's guarantees.[2] At the minimum level, however, the Court "consistently has required that legislation classify the persons it affects in a manner rationally related to legitimate governmental objectives." Schweiker v. Wilson, 450 U.S. 221, 230 (1981). This is not a difficult standard for a State to meet when it is attempting to act sensibly and in good faith. But the "rational-basis standard is `not a toothless one,' " id., at 234, quoting Mathews v. Lucas, 427 U.S. 495, 510 (1976); the classificatory scheme must "rationally advanc[e] a reasonable and identifiable governmental objective." Schweiker v. Wilson, 450 U. S., at 235. I see no need to explore the outer bounds of this test, for I find that the Illinois statute runs afoul of the lowest level of permissible equal protection scrutiny.
The FEPA itself has two express purposes: eliminating employment discrimination, and protecting employers and other potential defendants "from unfounded charges of discrimination." ¶ 851. It is evident at a glance that neither of these objectives is advanced by ¶ 858(b)'s deadline provision. Terminating potentially meritorious claims in a random manner obviously cannot serve to redress instances of discrimination. *440 And it cannot protect employers from unfounded charges, for the frivolousness of a claim is entirely unrelated to the length of time the Commission takes to process that claim. So far as this purpose is concerned, ¶ 858(b) stands on precisely the same footing as the state statute invalidated in Lindsey v. Normet, 405 U.S. 56 (1972). There, the Court struck down a provision requiring a tenant to post a double bond before appealing an adverse forcible entry judgment. "The claim that the double-bond requirement operates to screen out frivolous appeals is unpersuasive," the Court noted, "for it not only bars nonfrivolous appeals by those who are unable to post the bond but also allows meritless appeals by others who can afford the bond." Id., at 78. Accord, Rinaldi v. Yeager, 384 U.S. 305, 310 (1966). Here, of course, the FEPA may operate to terminate meritorious claims without any hearing at all, while allowing frivolous complaints to proceed through the entire administrative and judicial review process. While it may well be true that "[n]o bright line divides the merely foolish from the arbitrary law," Schweiker v. Wilson, 450 U. S., at 243 (dissenting opinion), I have no doubt that ¶ 858(b) is patently irrational in the light of its stated purposes.
In its opinion, however, the Illinois Supreme Court recognized a third rationale for ¶ 858(b): that provision, according to the court, was designed to further the "just and expeditious resolutio[n]" of employment disputes. Zimmerman Brush Co. v. Fair Employment Practices Comm'n, 82 Ill. 2d 99, 107, 411 N.E.2d 277, 282 (1980). Insofar as the court meant to suggest that a factfinding conference may help settle controversies and frame issues for a more efficient future resolution, it was undoubtedly correct. But I cannot agree that terminating a claim that the State itself has misscheduled is a rational way of expediting the resolution of disputes.[3]
*441 Most important, the procedure at issue does not serve generally to hasten the processing or ultimate termination of employment controversies. Once the Commission has scheduled a factfinding conference and issued a complaint, there are no statutory time limits at all on the length of time it can take to resolve the claim. And ¶ 858(b) does not serve to protect employers from stale charges, because it does not function as a statute of limitation; Logan does not and could not quarrel with the requirement that complainants file their charges in a timely fashion.
It is true, of course, that ¶ 858(b) serves to expedite the resolution of certain claims those not processed within 120 days in a most obvious way, and in that sense it furthers the purpose of terminating disputes expeditiously. But it is not enough, under the Equal Protection Clause, to say that the legislature sought to terminate certain claims and succeeded in doing so, for that is "a mere tautological recognition of the fact that [the legislature] did what it intended to do." U. S. Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 180 (1980) (STEVENS, J., concurring in judgment). This Court still has an obligation to view the classificatory system, in an effort to determine whether the disparate treatment accorded the affected classes is arbitrary. Rinaldi v. Yeager, 384 U. S., at 308 ("The Equal Protection Clause requires more of a state law than nondiscriminatory application within the class it establishes"). Cf. U. S. Railroad Retirement Bd. v. Fritz, 449 U. S., at 178.
*442 Here, that inquiry yields an affirmative result. So far as the State's purpose is concerned, every FEPA claimant's charge, when filed with the Commission, stands on the same footing. Yet certain randomly selected claims, because processed too slowly by the State, are irrevocably terminated without review. In other words, the State converts similarly situated claims into dissimilarly situated ones, and then uses this distinction as the basis for its classification. This, I believe, is the very essence of arbitrary state action. "[T]he Equal Protection Clause `imposes a requirement of some rationality in the nature of the class singled out,' " James v. Strange, 407 U.S. 128, 140 (1972), quoting Rinaldi, 384 U. S., at 308-309, and that rationality is absent here. The Court faced an analogous situation in a case involving sex-based classifications, and its conclusion there is applicable to the case before us now: giving preference to a discrete class "merely to accomplish the elimination of hearings on the merits, is to make the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause . . . ." Reed v. Reed, 404 U.S. 71, 76 (1971).
Finally, it is possible that the Illinois Supreme Court meant to suggest that the deadline contained in ¶ 858(b) can be justified as a means of thinning out the Commission's caseload, with the aim of encouraging the Commission to convene timely hearings. This rationale, however, suffers from the defect outlined above: it draws an arbitrary line between otherwise identical claims. In any event, the State's method of furthering this purpose if this was in fact the legislative end has so speculative and attenuated a connection to its goal as to amount to arbitrary action. The State's rationale must be something more than the exercise of a strained imagination; while the connection between means and ends need not be precise, it, at the least, must have some objective basis. That is not so here.
I thus agree with appellant Logan that the Illinois scheme also deprives him of his Fourteenth Amendment right to the equal protection of the laws.
*443 JUSTICE POWELL, with whom JUSTICE REHNQUIST joins, concurring in the judgment. | [] The issue in this case is whether a State may terminate a complainant's cause of action because a state official, for reasons beyond the complainant's control, failed to comply with a statutorily mandated procedure. I A The Illinois Fair Employment Practices Act (FEPA or Act), Ill. Rev. Stat., ch. 48, ¶ 85 et seq. barred employment discrimination on the basis of "physical handicap unrelated to ability." ¶ 853(a). It also established a comprehensive scheme for adjudicating allegations of discrimination. To begin the process, a complainant had to bring a charge of unlawful conduct before the Illinois Fair Employment Practices Commission (Commission) within 80 days of the occurrence of the allegedly discriminatory act. ¶ 858(a). The statute in the provision directly at issue here then gave the Commission 20 days within which to convene a factfinding conference designed to obtain evidence, ascertain the positions of the parties, and explore the possibility of a negotiated settlement. ¶ 858(b). If the Commission found "substantial evidence" of illegal conduct, it was to attempt to "eliminate the effect thereof by means of *425 conference and conciliation," ¶ 858(c), and, if that proved impossible, to issue a formal complaint against the employer within 80 days after the expiration of the 20-day period. ¶ 858(d). A formal adversary hearing was then to be held before a commissioner or duly appointed adjudicator, who was to make findings and who was empowered to recommend reinstatement, backpay, and reasonable attorney's fees. ¶ 858.0. If the commissioner or adjudicator did not find substantial evidence of discrimination, he was to recommend dismissal of the charge. The findings and recommended order were to be filed with the Commission. A complainant was entitled to obtain review by the full Commission of any of the possible dispositions of his charge, including an initial determination that the evidence did not justify a complaint. The Commission was to file a written order and decision. ¶ 858.02; Illinois Fair Employment Practices Commission, Rules and Regulations, 4.5 If still not satisfied, the complainant could seek judicial review of any Commission order. ¶ 860.[] *426 B On November 9, 979, appellant Laverne L. Logan, a probationary employee hired one month previously, was discharged by appellee Zimmerman Brush Company, purportedly because Logan's short left leg made it impossible for him to perform his duties as a shipping clerk. Five days later, Logan, acting pro se, filed a charge with the Commission alleging that his employment had been unlawfully terminated because of his physical handicap. App. 3. This triggered the Commission's statutory obligation under ¶ 858(b) to convene a factfinding conference within 20 days; in Logan's case, this meant by March 3, Apparently through inadvertence, the Commission's representative scheduled the conference for March 8, five days after expiration of the statutory period. Notice of the meeting, which was mailed to both parties in January specified the hearing's date and location and declared that attendance was "required." It, however, did not allude to the FEPA's 20-day time limit. App. 5. The Commission also asked the company to complete a short questionnaire concerning its employment practices, and directed that it submit its answers by March 0. The company did this without objection. When the conference date arrived, the company moved that Logan's charge be dismissed because the Commission had failed to hold the conference within the statutorily mandated 20-day period. This request was rejected. The company thereupon petitioned the Supreme Court of Illinois for an original writ of prohibition. That court stayed proceedings on Logan's complaint pending decision on the request for a writ. Logan meanwhile obtained counsel, and because 80 days had not yet passed since the occurrence of the allegedly discriminatory act filed a second charge with the Commission. Before the Illinois Supreme Court, Logan argued that terminating his claim because of the Commission's failure to convene a timely conference a matter beyond Logan's, or indeed *427 the company's, control would violate his federal rights to due process and equal protection of the laws. But the court noted that the statutory provision at issue, ¶ 858(b), declared: "Within 20 days of the proper filing of a charge, the Commission shall convene a fact finding conference." (Emphasis added.) The Illinois court found this legislative language to be mandatory, and accordingly it held that failure to comply deprived the Commission of jurisdiction to consider Logan's charge. Zimmerman Brush The court found controlling its decision in Springfield-Sangamon County Regional Planning[2] where it had determined that ¶ 858(c)'s 80-day deadline for issuing a complaint was mandatory; since the state legislature wrote ¶ 858(b) after the Springfield-Sangamon decision, and used language similar to that employed in ¶ 858(c), it must have intended the 20-day time limit to be jurisdictional as well. This result, reasoned the court, comported with the statute's purposes by facilitating the "just and expeditious resolutions of employment disputes," while protecting employers " `from unfounded charges of discrimination,' " quoting ¶ 85. The Illinois Supreme Court summarily rejected Logan's argument that his due process and equal protection rights would be violated were the Commission's error allowed to extinguish his cause of action. The state legislature had established the right to redress for discriminatory employment practices, it was said, and "[t]he legislature could establish reasonable procedures to be followed upon a charge" *428 The court then went on to rule that Logan could not file a second charge with the Commission based upon the same act of alleged discrimination, for to allow the second complaint to proceed would circumvent the design of the Act and frustrate the public interest in an expeditious resolution of disputes.[3] -09, -283. Logan appealed, bringing his federal claims to this Court. We noted probable jurisdiction. II A Justice Jackson, writing for the Court in observed: "Many controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case." At the outset, then, we are faced with what has become a familiar two-part inquiry: we must determine whether Logan was deprived of a protected interest, and, if so, what process was his due. The first question, we believe, was affirmatively settled by the Mullane case itself, where the Court held that a cause of action is a species of property protected by the Fourteenth Amendment's Due Process Clause.[4] There, the Court confronted a challenge to a state law that provided for the settlement *429 of common trust fund accounts by fiduciaries, upon notice given through newspaper publication. The effect of the statute was to terminate "every right which beneficiaries would otherwise have against the trust company for improper management of the common trust fund." This, the Court concluded, worked to deprive the beneficiaries of property by, among other things, "cut[ting] off their rights to have the trustee answer for negligent or illegal impairments of their interests." Such a result was impermissible unless constitutionally adequate notice and hearing procedures were established before the settlement process went into effect. Despite appellee Zimmerman Brush Company's arguments to the contrary, we see no meaningful distinction between the cause of action at issue in Mullane and Logan's right to use the FEPA's adjudicatory procedures. This conclusion is hardly a novel one. The Court traditionally has held that the Due Process Clauses protect civil litigants who seek recourse in the courts, either as defendants hoping to protect their property or as plaintiffs attempting to redress grievances. In Societe for example where a plaintiff's claim had been dismissed for failure to comply with a trial court's order the Court read the "property" component of the Fifth Amendment's Due Process Clause to impose "constitutional limitations upon the power of courts, even in aid of their own valid processes, to dismiss an action without affording a party the opportunity for a hearing on the merits of his cause." See also Hammond Packing ; ; Cf. Similarly, the Fourteenth Amendment's Due Process Clause has been interpreted as preventing the States from denying potential litigants use of established adjudicatory procedures, when such *430 an action would be "the equivalent of denying them an opportunity to be heard upon their claimed right[s]."[5] In any event, the view that Logan's FEPA claim is a constitutionally protected one follows logically from the Court's more recent cases analyzing the nature of a property interest. The hallmark of property, the Court has emphasized, is an individual entitlement grounded in state law, which cannot be removed except "for cause." Memphis Light, Gas & Water ; ; Board of Once that characteristic is found, the types of interests protected as "property" are varied and, as often as not, intangible, relating "to the whole domain of social and economic fact." National Mutual Insurance ; ; Board of -572, 5-577. See, e. g., ; Memphis Light, Gas & Water ; ; ; ; ; The right to use the FEPA's adjudicatory procedures shares these characteristics. A claimant has more than an abstract desire or interest in redressing his grievance: his right to redress is guaranteed by the State, with the adequacy of his claim assessed under what is, in essence, a "for cause" standard, based upon the substantiality of the evidence. And an FEPA claim, which presumably can be surrendered for value, is at least as substantial as the right to an education labeled as property in[6] Certainly, it would require a remarkable reading of a "broad and majestic ter[m]," Board of to conclude that a horse trainer's license is a protected property interest under the Fourteenth Amendment, while a state-created right to redress discrimination is not. The Illinois Supreme Court nevertheless seemed to believe that no individual entitlement could come into being under the FEPA until the Commission took appropriate action within the statutory deadline. Because the entitlement arises from statute, the court reasoned, it was the legislature's *432 prerogative to establish the "procedures to be followed upon a charge." 82 Ill. 2d, This analysis, we believe, misunderstands the nature of the Constitution's due process guarantee. Each of our due process cases has recognized, either explicitly or implicitly, that because "minimum [procedural] requirements [are] a matter of federal law, they are not diminished by the fact that the State may have specified its own procedures that it may deem adequate for determining the preconditions to adverse official action." See 46 U. S., 6-67 ; Indeed, any other conclusion would allow the State to destroy at will virtually any state-created property interest. The Court has considered and rejected such an approach: " `While the legislature may elect not to confer a property interest, it may not constitutionally authorize the deprivation of such an interest, once conferred, without appropriate procedural safeguards. [T]he adequacy of statutory procedures for deprivation of a statutorily created property interest must be analyzed in constitutional terms.' " -, n. 6, quoting 46 U. S., 7 Of course, the State remains free to create substantive defenses or immunities for use in adjudication or to eliminate its statutorily created causes of action altogether just as it can amend or terminate its welfare or employment programs. The Court held as much in where it upheld a statute granting officials immunity from certain types of state tort claims. We acknowledged that the grant of immunity arguably did deprive the plaintiffs of a protected property interest. But they were not thereby deprived of property without due process, just as a welfare recipient is not deprived of due process when the legislature adjusts benefit levels. Cf. *433 U. S. Railroad Retirement ; ; ; Chase Securities In each case, the legislative determination provides all the process that is due, see Bi-Metallic Investment ; it "remain[s] true that the State's interest in fashioning its own rules of tort law is paramount to any discernible federal interest, except perhaps an interest in protecting the individual citizen from state action that is wholly arbitrary or irrational." Indeed, as was acknowledged in Martinez, it may well be that a substantive "immunity defense, like an element of the tort claim itself, is merely one aspect of the State's definition of that property interest." Cf. The 20-day limitation in the FEPA, ¶ 858(b), of course, involves no such thing. It is a procedural limitation on the claimant's ability to assert his rights, not a substantive element of the FEPA claim. Because the state scheme has deprived Logan of a property right, then, we turn to the determination of what process is due him. B As our decisions have emphasized time and again, the Due Process Clause grants the aggrieved party the opportunity to present his case and have its merits fairly judged. Thus it has become a truism that "some form of hearing" is required before the owner is finally deprived of a protected property interest. Board of -57, n. 8 And that is why the Court has stressed that, when a "statutory scheme makes liability an important factor in the State's determination the State may not, consistent with due process, eliminate consideration of that factor in its prior hearing." 402 *. To put it as plainly as possible, the State may not finally destroy a property interest without first giving the putative owner an opportunity to present his claim of entitlement.[7] See On the other hand, the Court has acknowledged that the timing and nature of the required hearing[8] "will depend on appropriate accommodation of the competing interests involved." These include the importance of the private interest and the length or finality of the deprivation, see Memphis Light, Gas & Water and -335; the likelihood of governmental error, see ; and the magnitude of the governmental interests involved, see ib and -563. Each of these factors leads us to conclude that appellant Logan is entitled to have the Commission consider the merits of his charge, based upon the substantiality of the available evidence, before deciding whether to terminate his claim. Logan's interests in retaining his employment, in disproving his employer's charges of incompetence or inability, and more intangibly in redressing an instance of alleged discrimination, are all substantial. At the same time, the deprivation here is final; Logan, unlike a claimant whose charge is dismissed on the merits for lack of evidence, cannot obtain judicial review of the Commission action. A system or procedure that deprives persons of their claims in a random manner, as is apparently true of ¶ 858(b), necessarily *435 presents an unjustifiably high risk that meritorious claims will be terminated. And the State's interest in refusing Logan's procedural request is, on this record, insubstantial. There has been no suggestion that any great number of claimants are in Logan's position, or that directing the State to consider the merits of Logan's claim will be unduly burdensome. In any event, the State by statute has eliminated the mandatory hearing requirement, see n. demonstrating that it no longer has any appreciable interest in defending the procedure at issue. Despite appellee Zimmerman Brush Company's arguments, the recent decision in 45 U.S. 527 is not to the contrary. There, a state employee negligently lost a prisoner's hobby kit; while the Court concluded that the prisoner had suffered a deprivation of property within the meaning of the Fourteenth Amendment, it held that all the process due was provided by the State's tort claims procedure. In such a situation, the Court observed, "[i]t is difficult to conceive of how the State could provide a meaningful hearing before the deprivation takes place." at 54. The company suggests that Logan is complaining of the same type of essentially negligent deprivation, and that he therefore should be remitted to the tort remedies provided by the Illinois Court of Claims Act, Ill. Rev. Stat., ch. 37, ¶ 439. et seq. That statute allows an action "against the State for damages in cases sounding in tort, if a like cause of action would lie against a private person." ¶ 439.8(d).[9] This argument misses 's point. In the Court emphasized that it was dealing with "a tortious loss of. property as a result of a random and unauthorized act by *436 a state employee not a result of some established state procedure." 45 U.S., at 54. Here, in contrast, it is the state system itself that destroys a complainant's property interest, by operation of law, whenever the Commission fails to convene a timely conference whether the Commission's action is taken through negligence, maliciousness, or otherwise. was not designed to reach such a situation. See Unlike the complainant in Logan is challenging not the Commission's error, but the "established state procedure" that destroys his entitlement without according him proper procedural safeguards. In any event, the Court's decisions suggest that, absent "the necessity of quick action by the State or the impracticality of providing any predeprivation process," a postdeprivation hearing here would be constitutionally inadequate. 45 U. S., at 539. See Memphis Light, Gas & Water -20; Board of n. 7; 402 U. S., ; 40 U. S., at 379. Cf. -65 ; -347 That is particularly true where, as here, the State's only post-termination process comes in the form of an independent tort action.[0] Seeking redress through a *437 tort suit is apt to be a lengthy and speculative process, which in a situation such as this one will never make the complainant entirely whole: the Illinois Court of Claims Act does not provide for reinstatement as appellee Zimmerman Brush Company conceded at oral argument, Tr. of Oral Arg. 39 and even a successful suit will not vindicate entirely Logan's right to be free from discriminatory treatment. Obviously, nothing we have said entitles every civil litigant to a hearing on the merits in every case. The State may erect reasonable procedural requirements for triggering the right to an adjudication, be they statutes of limitations, cf. Chase Securities 325 U. S., at 34-36, or, in an appropriate case, filing fees. United (973). And the State certainly accords due process when it terminates a claim for failure to comply with a reasonable procedural or evidentiary rule. Hammond Packing 22 U. S., at 35; What the Fourteenth Amendment does require, however, "is `an opportunity granted at a meaningful time and in a meaningful manner,' U.S. 545, (965) `for [a] hearing appropriate to the nature of the case,' Mullane v. Central Hanover Tr." 40 U. S., at 378. It is such an opportunity that Logan was denied. *438 III The judgment of the Supreme Court of Illinois, accordingly, is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. JUSTICE BLACKMUN, with whom JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE O'CONNOR join. The Court's opinion, ante, considers appellant Logan's due process claim and decides that issue in his favor. As has been noted, Logan also raised an equal protection claim and that issue has been argued and briefed here. Although the Court considered that it was unnecessary to discuss and dispose of the equal protection claim when the due process issue was being decided in Logan's favor, I regard the equal protection issue as sufficiently important to require comment on my part,[] particularly inasmuch as a majority of the Members of the Court are favorably inclined toward the claim, although, to be sure, that majority is not the one that constitutes the Court for the controlling opinion. On its face, Logan's equal protection claim is an unconventional one. The Act's ¶ 858(b) establishes no explicit classifications and does not expressly distinguish between claimants, and the company therefore argues that Logan has no more been deprived of equal protection than anyone would be who is injured by a random act of governmental misconduct. As the Illinois Supreme Court interpreted the statute, however, ¶ 858(b) unambiguously divides claims and thus, necessarily, claimants into two discrete groups that are accorded radically disparate treatment. Claims processed within 20 days are given full consideration on the merits, *439 and complainants bringing such charges are awarded the opportunity for full administrative and judicial review. In contrast, otherwise identical claims that do not receive a hearing within the statutory period are unceremoniously, and finally, terminated. Because the Illinois court recognized, in so many words, that the FEPA establishes two categories of claims, one may proceed to determine whether the classification drawn by the statute is consistent with the Fourteenth Amendment. For over a century, the Court has engaged in a continuing and occasionally almost metaphysical effort to identify the precise nature of the Equal Protection Clause's guarantees.[2] At the minimum level, however, the Court "consistently has required that legislation classify the persons it affects in a manner rationally related to legitimate governmental objectives." 450 U.S. 22, This is not a difficult standard for a State to meet when it is attempting to act sensibly and in good faith. But the "rational-basis standard is `not a toothless one,' " quoting 50 ; the classificatory scheme must "rationally advanc[e] a reasonable and identifiable governmental objective." I see no need to explore the outer bounds of this test, for I find that the Illinois statute runs afoul of the lowest level of permissible equal protection scrutiny. The FEPA itself has two express purposes: eliminating employment discrimination, and protecting employers and other potential defendants "from unfounded charges of discrimination." ¶ 85. It is evident at a glance that neither of these objectives is advanced by ¶ 858(b)'s deadline provision. Terminating potentially meritorious claims in a random manner obviously cannot serve to redress instances of discrimination. *440 And it cannot protect employers from unfounded charges, for the frivolousness of a claim is entirely unrelated to the length of time the Commission takes to process that claim. So far as this purpose is concerned, ¶ 858(b) stands on precisely the same footing as the state statute invalidated in There, the Court struck down a provision requiring a tenant to post a double bond before appealing an adverse forcible entry judgment. "The claim that the double-bond requirement operates to screen out frivolous appeals is unpersuasive," the Court noted, "for it not only bars nonfrivolous appeals by those who are unable to post the bond but also allows meritless appeals by others who can afford the bond." Accord, 30 (966). Here, of course, the FEPA may operate to terminate meritorious claims without any hearing at all, while allowing frivolous complaints to proceed through the entire administrative and judicial review process. While it may well be true that "[n]o bright line divides the merely foolish from the arbitrary law," 450 U. S., 3 I have no doubt that ¶ 858(b) is patently irrational in the light of its stated purposes. In its opinion, however, the Illinois Supreme Court recognized a third rationale for ¶ 858(b): that provision, according to the court, was designed to further the "just and expeditious resolutio[n]" of employment disputes. Zimmerman Brush 07, Insofar as the court meant to suggest that a factfinding conference may help settle controversies and frame issues for a more efficient future resolution, it was undoubtedly correct. But I cannot agree that terminating a claim that the State itself has misscheduled is a rational way of expediting the resolution of disputes.[3] *44 Most important, the procedure at issue does not serve generally to hasten the processing or ultimate termination of employment controversies. Once the Commission has scheduled a factfinding conference and issued a complaint, there are no statutory time limits at all on the length of time it can take to resolve the claim. And ¶ 858(b) does not serve to protect employers from stale charges, because it does not function as a statute of limitation; Logan does not and could not quarrel with the requirement that complainants file their charges in a timely fashion. It is true, of course, that ¶ 858(b) serves to expedite the resolution of certain claims those not processed within 20 days in a most obvious way, and in that sense it furthers the purpose of terminating disputes expeditiously. But it is not enough, under the Equal Protection Clause, to say that the legislature sought to terminate certain claims and succeeded in doing so, for that is "a mere tautological recognition of the fact that [the legislature] did what it intended to do." U. S. Railroad Retirement 80 This Court still has an obligation to view the classificatory system, in an effort to determine whether the disparate treatment accorded the affected classes is arbitrary. Cf. U. S. Railroad Retirement 449 U. S., *442 Here, that inquiry yields an affirmative result. So far as the State's purpose is concerned, every FEPA claimant's charge, when filed with the Commission, stands on the same footing. Yet certain randomly selected claims, because processed too slowly by the State, are irrevocably terminated without review. In other words, the State converts similarly situated claims into dissimilarly situated ones, and then uses this distinction as the basis for its classification. This, I believe, is the very essence of arbitrary state action. "[T]he Equal Protection Clause `imposes a requirement of some rationality in the nature of the class singled out,' " 407 U.S. 28, 40 quoting -309, and that rationality is absent here. The Court faced an analogous situation in a case involving sex-based classifications, and its conclusion there is applicable to the case before us now: giving preference to a discrete class "merely to accomplish the elimination of hearings on the merits, is to make the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause" 404 U.S. 7, Finally, it is possible that the Illinois Supreme Court meant to suggest that the deadline contained in ¶ 858(b) can be justified as a means of thinning out the Commission's caseload, with the aim of encouraging the Commission to convene timely hearings. This rationale, however, suffers from the defect outlined above: it draws an arbitrary line between otherwise identical claims. In any event, the State's method of furthering this purpose if this was in fact the legislative end has so speculative and attenuated a connection to its goal as to amount to arbitrary action. The State's rationale must be something more than the exercise of a strained imagination; while the connection between means and ends need not be precise, it, at the least, must have some objective basis. That is not so here. I thus agree with appellant Logan that the Illinois scheme also deprives him of his Fourteenth Amendment right to the equal protection of the laws. *443 JUSTICE POWELL, with whom JUSTICE REHNQUIST joins, concurring in the judgment. |
Justice Powell | dissenting | false | Dougherty County Bd. of Ed. v. White | 1978-11-28T00:00:00 | null | https://www.courtlistener.com/opinion/109949/dougherty-county-bd-of-ed-v-white/ | https://www.courtlistener.com/api/rest/v3/clusters/109949/ | 1,978 | 1978-007 | 2 | 5 | 4 | Today the Court again expands the reach of the Voting Rights Act of 1965, ruling that a local board of education with no authority over any electoral system must obtain federal clearance of its personnel rule requiring employees to take leaves of absence while campaigning for political office. The Court's ruling is without support in the language or legislative history of the Act. Moreover, although prior decisions *48 of the Court have taken liberties with this language and history, today's decision is without precedent.
I
Standard, Practice, or Procedure
Section 5 requires federal preclearance before a "political subdivision" of a State covered by § 4 of the Act may enforce a change in "any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting . . . ." This provision marked a radical departure from traditional notions of constitutional federalism, a departure several Members of this Court have regarded as unconstitutional.[1] Indeed, the Court noted in the first case to come before it under the Act that § 5 represents an "uncommon exercise of congressional power," South Carolina v. Katzenbach, 383 U.S. 301, 334 (1966), and the Justice Department has conceded in testimony before Congress that it is a "substantial departure . . . from ordinary concepts of our federal system." Hearings on S. 407 et al. before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 94th Cong., 1st Sess., 536 (1975) (testimony of Stanley Pottinger, Asst. Atty. Gen., Civil Rights Division).
Congress tempered the intrusion of the Federal Government into state affairs, however, by limiting the Act's coverage to voting regulations. Indeed, the very title of the Act shows *49 that the Act's thrust is directed to the protection of voting rights. Section 2 forbids the States to use any "voting qualification or prerequisite to voting, or standard, practice, or procedure" (emphasis added) to deny anyone the right to vote on account of race. Similarly, § 4 sharply curtails the rights of certain States to use "tests or devices" as prerequisites to voting eligibility. "[T]est or device" is defined in § 4 (c), 42 U.S. C. § 1973b (c), as
"any requirement that a person as a prerequisite for voting or registration for voting (1) demonstrate the ability to read, write, understand, or interpret any matter, (2) demonstrate any educational achievement or his knowledge of any particular subject, (3) possess good moral character, or (4) prove his qualifications by the voucher of registered voters or members of any other class." (Emphasis added.)
Finally, § 5 requires preclearance only of "any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting" (emphasis added).[2]
The question under this language, therefore, is whether Rule 58 of the Board pertains to voting. Contrary to the suggestion of the Court's opinion, see ante, at 42-43, the answer to this question turns neither on the Board's possible discrimination against the appellee, nor on the potential of enactments such as Rule 58 for use as instruments of racial discrimination. Section 5 by its terms is not limited to enactments *50 that have a potential for discriminatory use; rather, it extends to all regulations with respect to voting, regardless of their purpose or potential uses. The affected party's race was conceded by counsel to be irrelevant in determining whether Rule 58 pertains to voting, see Tr. of Oral Arg. 25-27; nor is the timing of the adoption of Rule 58 of any significance. Indeed, in stating his cause of action under the Act, the appellee does not allege any discrimination on the basis of race.[3] Yet the Court, in holding that Rule 58 is subject to the preclearance requirements of § 5, relies on a perceived potential for discrimination. In so doing, the Court simply disregards the explicit scope of § 5 and relies upon factors that the parties have conceded to be irrelevant.[4]
*51 Separated from all mistaken references to racial discrimination, the Court's holding that Rule 58 is a "standard, practice, or procedure with respect to voting" is difficult to understand. It tortures the language of the Act to conclude that this personnel regulation, having nothing to do with the conduct of elections as such, is state action "with respect to voting." No one is denied the right to vote; nor is anyone's exercise of the franchise impaired.
To support its interpretation of § 5, the Court has constructed a tenuous theory, reasoning that, because the right to vote includes the right to vote for whoever may wish to run for office, any discouragement given any potential candidate may deprive someone of the right to vote. In constructing this theory, ante, at 41, the Court relies upon Bullock v. Carter, 405 U.S. 134 (1972); Hadnott v. Amos, 394 U.S. 358 (1969); and Allen v. State Board of Elections, 393 U.S. 544 (1969)cases that involved explicit barriers to candidacy, such as the filing fees held to violate the Fourteenth Amendment in Bullock. The Court states that the "reality here is that Rule 58's impact on elections is no different from that of many of the candidate qualification changes for which we have previously required preclearance." Ante, at 41. But the notion that a State or locality imposes a "qualification" on candidates by refusing to support their campaigns with public funds is without support in reason or precedent.
As no prior § 5 decision arguably governs the resolution of this case, the Court draws upon broad dictum that, taken from *52 its context, is meaningless.[5] For example, in Allen v. State Board of Elections, supra, at 566, the Court suggested that § 5 would require clearance of "any state enactment which alter[s] the election law of a covered State in even a minor way." Even if the language in Allen were viewed as necessary to the Court's holding in that case, it would not support today's decision. In Allen, as in each of the cases relied upon today,[6]*53 the Court was considering an enactment relating directly to the way in which elections are conducted: either by structuring the method of balloting, setting forth the qualifications for candidates, or determining who shall be permitted to vote. These enactments could be said to be "with respect to voting" in elections. Rule 58, on the other hand, effects no change in an election law or in a law regulating who may vote or when and where they may do so. It is a personnel rule directed to the resolution of a personnel problem: the expenditure of public funds to support the candidacy of an employee whose time and energies may be devoted to campaigning, rather than to counseling schoolchildren.
After extending the scope of § 5 beyond anything indicated in the statutory language or in precedent, the Court attempts to limit its holding by suggesting that Rule 58 somehow differs from a "neutral personnel practice governing all forms of absenteeism," as it "specifically addresses the electoral process." See ante, at 40. Thus, the Court intimates that it would not require Rule 58 to be precleared if the rule required Board employees to take unpaid leaves of absence whenever an extracurricular responsibility required them frequently to be absent from their dutieswhether that responsibility derived from candidacy for office, campaigning for a friend who is running for office, fulfilling civic duties, or entering into gainful employment with a second employer. The Court goes on, however, to give as the principal reason for extension of § 5 to Rule 58 the effect of such rules on potential candidates for office. What the Court fails to note is that the effect on a potential candidate of a "neutral personnel practice governing all forms of absenteeism" is no less than the effect of Rule 58 as enacted by the Dougherty County School Board. Thus, under a general absenteeism provision the appellee would go without pay just as he did under Rule 58; the only difference would be that Board employees absent for reasons other than their candidacy would join the appellee on leave. *54 Under the Court's rationale, therefore, even those enactments making no explicit reference to the electoral process would have to be cleared through the Attorney General or the District Court for the District of Columbia. Indeed, if the Court truly means that any incidental impact on elections is sufficient to trigger the preclearance requirement of § 5, then it is difficult to imagine what sorts of state or local enactments would not fall within the scope of that section.[7]
II
Political Subdivision
Section 5 requires federal preclearance only of those voting changes that are adopted either by a State covered under § 4 or by a "political subdivision" of such a State. Although § 14 (c) (2) of the Act restricts the term "political subdivision" to state institutions that "conduc[t] registration for voting," last Term the Court ruled that the preclearance requirement of § 5 applied to the city of Sheffield, Ala., which is without authority to register voters. See United States v. Board of *55 Commissioners of Sheffield, 435 U.S. 110 (1978). Sheffield had been given authority, however, to undertake a substantial restructuring of the method by which its government officials would be selected.[8] Thus, pursuant to a voter referendum, Sheffield had changed from a commission to a mayor-council form of government. Councilmen were to be elected at large, but would run for numbered seats corresponding to the two council seats given each of the city's four wards.
The Court held that Sheffield was a political subdivision, in spite of its lack of authority to register voters. Today the Court states that appellants' "contention is squarely foreclosed by our decision last Term" in Sheffield. Ante, at 44. The contention that this local school board is not a political subdivision under the Act is foreclosed only because the Court now declares it to be so, as neither the holding nor the rationale of Sheffield applies to this case. The Sheffield decision was based on two grounds, neither of which is present here. First, the Sheffield Court relied upon "congressional intent" as derived from "the Act's structure," "the language of the Act," "the legislative history of . . . enactment and re-enactments," and "the Attorney General's consistent interpretations of § 5." 435 U.S., at 117-118. Second, the Court based its decision on the frustration of the Act's basic policy that would result if a State could circumvent the Act's provisions by simply withdrawing the power to register voters from all or selected cities, counties, parishes, or other political subdivisions.[9]
*56 There is nothing in the language, structure, or legislative history of the Act that suggests it was Congress' intent that local entities such as the Board were to fall within the reach of § 5; nor has the Court cited any "consistent interpretation" of § 5 by the Attorney General that supports the Court's holding.[10] Looking to the structure of the Act, the Court argues that whether a subdivision has electoral responsibilities is of no consequence in determining whether § 5 is applicable. Ante, at 45-46. Rather, it is said that this provision "directs attention to the impact of a change on the electoral process, not to the duties of the political subdivision that adopted it." Ibid. Neither Sheffield nor any other decision of the Court suggests that § 5 applies to the actions of every local entity however remote its powers may be with respect to elections and voting. Indeed, the Court indicated the importance of direct power over elections in Sheffield when it repeatedly emphasized Sheffield's "power over the electoral process."[11]*57 See, e. g., 435 U. S., at 118, 120, 122, 127. A rational application of Sheffield would require consideration of whether the entity enacting a change had a substantial measure of authority over the way in which elections were held or over the right to vote. The city of Sheffield had such authority; the Dougherty County School Board does not.
Although professing to find support in the legislative history of the Act, the Court cites no committee report or statement by any supporter of the Act that suggests a congressional intention to require federal preclearance of actions by local entities that are powerless to exercise any control over elections or voting. The Court does try to connect § 5 to school boards by references to legislative history that are entirely irrelevant. The Court neglects to make clear that each of these references pertained to a school board enacting changes in the way its members were elected, something the Dougherty County School Board is without authority to do.[12] See 121 Cong. Rec. 23744 (1975) (remarks of Sen. Stennis) ("Any changes, so far as election officials were concerned, which were made in precincts, county districts, school districts, municipalities, or State legislatures . . . had to be submitted"); Hearings on S. 407 et al. before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 94th Cong., 1st Sess., 467-470 (1975) (school board enacting changes from ward to at-large elections for its members); S. Rep. No. 94-295, p. 27 (1975) (school boards in Texas adopting "[e]lection law changes" to avoid election of minority groups to school boards).
*58 Furthermore, the Sheffield Court's concern over the possible circumvention of the Act is inapposite here, as the Board (unlike the city of Sheffield) has no authority to regulate the electoral process. There can be no danger, therefore, that substantial restructuring of the electoral system will take place in Dougherty County without the scrutiny of either the Attorney General or the District Court for the District of Columbia.
Thus, none of the factors relied upon in Sheffield is present in this case: There is no relevant "language of the Act," nothing in the "Act's structure," nothing in its "legislative history," and no "consistent interpretation of § 5" by the Attorney General to support the extension of § 5 to the Board's enactments. Nor is it possible that a local school board that is without authority over the electoral process will be used to circumvent the Act's basic policy. There simply is no parallel in fact or governmental theory between a city like Sheffield and the Dougherty County School Board.
Finding no support for its decision in the rationale of Sheffield, the Court falls back upon language in that opinion that "all entities having power over any aspect of the electoral process" are subject to § 5language merely expressing a conclusion drawn from a consideration of the factors present in Sheffield, but absent here.[13] The Board has no "power over any aspect of the electoral process" in the normal sense of these words. It did not purport by Rule 58 to regulate the appellee's election to the Georgia House of Representatives; *59 it has been given no authority under Georgia law to do so. Rather, the Board merely has said to its employees that, if they choose to run for any elective office, the Board will not affirmatively support their campaign by paying their wages despite the neglect of their duties that inevitably will occur. Such neutral action designed to protect the public fisc hardly rises to the level of "power over . . . the election process."
In sum, I would reverse the judgment below on either or both of two grounds. The Dougherty County School Board is not a "political subdivision" within the meaning of the Act. Even if it were deemed to be such, the personnel rule at issue is not a standard, practice, or procedure "with respect to voting." As respectful as I am of my Brothers' opinions, I view the Court's decision as simply a judicial revision of the Act, unsupported by its purpose, statutory language, structure, or history.
| Today the Court again expands the reach of the Voting Rights Act of 1965, ruling that a local board of education with no authority over any electoral system must obtain federal clearance of its personnel rule requiring employees to take leaves of absence while campaigning for political office. The Court's ruling is without support in the language or legislative history of the Act. Moreover, although prior decisions *48 of the Court have taken liberties with this language and history, today's decision is without precedent. I Standard, Practice, or Procedure Section 5 requires federal preclearance before a "political subdivision" of a State covered by 4 of the Act may enforce a change in "any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting" This provision marked a radical departure from traditional notions of constitutional federalism, a departure several Members of this Court have regarded as unconstitutional.[1] Indeed, the Court noted in the first case to come before it under the Act that 5 represents an "uncommon exercise of congressional power," South and the Justice Department has conceded in testimony before Congress that it is a "substantial departure from ordinary concepts of our federal system." Hearings on S. 407 et al. before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 94th Con, 1st Sess., 536 (1975) (testimony of Stanley Pottinger, Asst. Atty. Gen., Civil Rights Division). Congress tempered the intrusion of the Federal Government into state affairs, however, by limiting the Act's coverage to voting regulations. Indeed, the very title of the Act shows *49 that the Act's thrust is directed to the protection of voting rights. Section 2 forbids the States to use any "voting qualification or prerequisite to voting, or standard, practice, or procedure" (emphasis added) to deny anyone the right to vote on account of race. Similarly, 4 sharply curtails the rights of certain States to use "tests or devices" as prerequisites to voting eligibility. "[T]est or device" is defined in 4 (c), 42 U.S. C. 1973b (c), as "any requirement that a person as a prerequisite for voting or registration for voting (1) demonstrate the ability to read, write, understand, or interpret any matter, (2) demonstrate any educational achievement or his knowledge of any particular subject, (3) possess good moral character, or (4) prove his qualifications by the voucher of registered voters or members of any other class." (Emphasis added.) Finally, 5 requires preclearance only of "any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting" (emphasis added).[2] The question under this language, therefore, is whether Rule 58 of the Board pertains to votin Contrary to the suggestion of the Court's opinion, see ante, at 42-43, the answer to this question turns neither on the Board's possible discrimination against the appellee, nor on the potential of enactments such as Rule 58 for use as instruments of racial discrimination. Section 5 by its terms is not limited to enactments *50 that have a potential for discriminatory use; rather, it extends to all regulations with respect to voting, regardless of their purpose or potential uses. The affected party's race was conceded by counsel to be irrelevant in determining whether Rule 58 pertains to voting, see Tr. of Oral Ar 25-27; nor is the timing of the adoption of Rule 58 of any significance. Indeed, in stating his cause of action under the Act, the appellee does not allege any discrimination on the basis of race.[3] Yet the Court, in holding that Rule 58 is subject to the preclearance requirements of 5, relies on a perceived potential for discrimination. In so doing, the Court simply disregards the explicit scope of 5 and relies upon factors that the parties have conceded to be irrelevant.[4] *51 Separated from all mistaken references to racial discrimination, the Court's holding that Rule 58 is a "standard, practice, or procedure with respect to voting" is difficult to understand. It tortures the language of the Act to conclude that this personnel regulation, having nothing to do with the conduct of elections as such, is state action "with respect to votin" No one is denied the right to vote; nor is anyone's exercise of the franchise impaired. To support its interpretation of 5, the Court has constructed a tenuous theory, reasoning that, because the right to vote includes the right to vote for whoever may wish to run for office, any discouragement given any potential candidate may deprive someone of the right to vote. In constructing this theory, ante, at 41, the Court relies upon ; ; and cases that involved explicit barriers to candidacy, such as the filing fees held to violate the Fourteenth Amendment in Bullock. The Court states that the "reality here is that Rule 58's impact on elections is no different from that of many of the candidate qualification changes for which we have previously required preclearance." Ante, at 41. But the notion that a State or locality imposes a "qualification" on candidates by refusing to support their campaigns with public funds is without support in reason or precedent. As no prior 5 decision arguably governs the resolution of this case, the Court draws upon broad dictum that, taken from *52 its context, is meaningless.[5] For example, in the Court suggested that 5 would require clearance of "any state enactment which alter[s] the election law of a covered State in even a minor way." Even if the language in Allen were viewed as necessary to the Court's holding in that case, it would not support today's decision. In Allen, as in each of the cases relied upon today,[6]*53 the Court was considering an enactment relating directly to the way in which elections are conducted: either by structuring the method of balloting, setting forth the qualifications for candidates, or determining who shall be permitted to vote. These enactments could be said to be "with respect to voting" in elections. Rule 58, on the other hand, effects no change in an election law or in a law regulating who may vote or when and where they may do so. It is a personnel rule directed to the resolution of a personnel problem: the expenditure of public funds to support the candidacy of an employee whose time and energies may be devoted to campaigning, rather than to counseling schoolchildren. After extending the scope of 5 beyond anything indicated in the statutory language or in precedent, the Court attempts to limit its holding by suggesting that Rule 58 somehow differs from a "neutral personnel practice governing all forms of absenteeism," as it "specifically addresses the electoral process." See ante, at 40. Thus, the Court intimates that it would not require Rule 58 to be precleared if the rule required Board employees to take unpaid leaves of absence whenever an extracurricular responsibility required them frequently to be absent from their dutieswhether that responsibility derived from candidacy for office, campaigning for a friend who is running for office, fulfilling civic duties, or entering into gainful employment with a second employer. The Court goes on, however, to give as the principal reason for extension of 5 to Rule 58 the effect of such rules on potential candidates for office. What the Court fails to note is that the effect on a potential candidate of a "neutral personnel practice governing all forms of absenteeism" is no less than the effect of Rule 58 as enacted by the Dougherty County School Board. Thus, under a general absenteeism provision the appellee would go without pay just as he did under Rule 58; the only difference would be that Board employees absent for reasons other than their candidacy would join the appellee on leave. *54 Under the Court's rationale, therefore, even those enactments making no explicit reference to the electoral process would have to be cleared through the Attorney General or the District Court for the District of Columbia. Indeed, if the Court truly means that any incidental impact on elections is sufficient to trigger the preclearance requirement of 5, then it is difficult to imagine what sorts of state or local enactments would not fall within the scope of that section.[7] II Political Subdivision Section 5 requires federal preclearance only of those voting changes that are adopted either by a State covered under 4 or by a "political subdivision" of such a State. Although 14 (c) (2) of the Act restricts the term "political subdivision" to state institutions that "conduc[t] registration for voting," last Term the Court ruled that the preclearance requirement of 5 applied to the city of Sheffield, Ala., which is without authority to register voters. See United Sheffield had been given authority, however, to undertake a substantial restructuring of the method by which its government officials would be selected.[8] Thus, pursuant to a voter referendum, Sheffield had changed from a commission to a mayor-council form of government. Councilmen were to be elected at large, but would run for numbered seats corresponding to the two council seats given each of the city's four wards. The Court held that Sheffield was a political subdivision, in spite of its lack of authority to register voters. Today the Court states that appellants' "contention is squarely foreclosed by our decision last Term" in Sheffield. Ante, at 44. The contention that this local school board is not a political subdivision under the Act is foreclosed only because the Court now declares it to be so, as neither the holding nor the rationale of Sheffield applies to this case. The Sheffield decision was based on two grounds, neither of which is present here. First, the Sheffield Court relied upon "congressional intent" as derived from "the Act's structure," "the language of the Act," "the legislative history of enactment and re-enactments," and "the Attorney General's consistent interpretations of 5." -118. Second, the Court based its decision on the frustration of the Act's basic policy that would result if a State could circumvent the Act's provisions by simply withdrawing the power to register voters from all or selected cities, counties, parishes, or other political subdivisions.[9] *56 There is nothing in the language, structure, or legislative history of the Act that suggests it was Congress' intent that local entities such as the Board were to fall within the reach of 5; nor has the Court cited any "consistent interpretation" of 5 by the Attorney General that supports the Court's holdin[10] Looking to the structure of the Act, the Court argues that whether a subdivision has electoral responsibilities is of no consequence in determining whether 5 is applicable. Ante, at 45-46. Rather, it is said that this provision "directs attention to the impact of a change on the electoral process, not to the duties of the political subdivision that adopted it." Neither Sheffield nor any other decision of the Court suggests that 5 applies to the actions of every local entity however remote its powers may be with respect to elections and votin Indeed, the Court indicated the importance of direct power over elections in Sheffield when it repeatedly emphasized Sheffield's "power over the electoral process."[11]*57 See, e. 120, 122, 127. A rational application of Sheffield would require consideration of whether the entity enacting a change had a substantial measure of authority over the way in which elections were held or over the right to vote. The city of Sheffield had such authority; the Dougherty County School Board does not. Although professing to find support in the legislative history of the Act, the Court cites no committee report or statement by any supporter of the Act that suggests a congressional intention to require federal preclearance of actions by local entities that are powerless to exercise any control over elections or votin The Court does try to connect 5 to school boards by references to legislative history that are entirely irrelevant. The Court neglects to make clear that each of these references pertained to a school board enacting changes in the way its members were elected, something the Dougherty County School Board is without authority to do.[12] See 121 Con Rec. 23744 (1975) (remarks of Sen. Stennis) ("Any changes, so far as election officials were concerned, which were made in precincts, county districts, school districts, municipalities, or State legislatures had to be submitted"); Hearings on S. 407 et al. before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 94th Con, 1st Sess., 467-470 (1975) (school board enacting changes from ward to at-large elections for its members); S. Rep. No. 94-295, p. 27 (1975) (school boards in Texas adopting "[e]lection law changes" to avoid election of minority groups to school boards). *58 Furthermore, the Sheffield Court's concern over the possible circumvention of the Act is inapposite here, as the Board (unlike the city of Sheffield) has no authority to regulate the electoral process. There can be no danger, therefore, that substantial restructuring of the electoral system will take place in Dougherty County without the scrutiny of either the Attorney General or the District Court for the District of Columbia. Thus, none of the factors relied upon in Sheffield is present in this case: There is no relevant "language of the Act," nothing in the "Act's structure," nothing in its "legislative history," and no "consistent interpretation of 5" by the Attorney General to support the extension of 5 to the Board's enactments. Nor is it possible that a local school board that is without authority over the electoral process will be used to circumvent the Act's basic policy. There simply is no parallel in fact or governmental theory between a city like Sheffield and the Dougherty County School Board. Finding no support for its decision in the rationale of Sheffield, the Court falls back upon language in that opinion that "all entities having power over any aspect of the electoral process" are subject to 5language merely expressing a conclusion drawn from a consideration of the factors present in Sheffield, but absent here.[13] The Board has no "power over any aspect of the electoral process" in the normal sense of these words. It did not purport by Rule 58 to regulate the appellee's election to the Georgia House of Representatives; *59 it has been given no authority under Georgia law to do so. Rather, the Board merely has said to its employees that, if they choose to run for any elective office, the Board will not affirmatively support their campaign by paying their wages despite the neglect of their duties that inevitably will occur. Such neutral action designed to protect the public fisc hardly rises to the level of "power over the election process." In sum, I would reverse the judgment below on either or both of two grounds. The Dougherty County School Board is not a "political subdivision" within the meaning of the Act. Even if it were deemed to be such, the personnel rule at issue is not a standard, practice, or procedure "with respect to votin" As respectful as I am of my Brothers' opinions, I view the Court's decision as simply a judicial revision of the Act, unsupported by its purpose, statutory language, structure, or history. |
Justice Brennan | majority | false | Longshoremen v. Ariadne Shipping Co. | 1970-03-09T00:00:00 | null | https://www.courtlistener.com/opinion/108091/longshoremen-v-ariadne-shipping-co/ | https://www.courtlistener.com/api/rest/v3/clusters/108091/ | 1,970 | 1969-056 | 2 | 8 | 0 | The question presented here is whether the National Labor Relations Act, 49 Stat. 449, as amended, 29 U.S. C. § 151 et seq., pre-empts state jurisdiction to enjoin peaceful picketing protesting substandard wages paid by foreign-flag vessels to American longshoremen working in American ports. The Florida courts held that there was no pre-emption, citing McCulloch v. Sociedad Nacional, 372 U.S. 10 (1963), and Incres Steamship Co. v. International Maritime Workers Union, 372 U.S. 24 (1963). We granted certiorari. 396 U.S. 814 (1969). We reverse.
In 1966 the respondents, a Liberian corporation and a Panamanian corporation, operated cruise ships to the Caribbean from Port Everglades and Miami, Florida. Respondent Ariadne Shipping Company operated the S. S. Ariadne, of Liberian registry, with a crew subject to Liberian ship's articles. Respondent Evangeline Steamship Company operated S. S. Bahama Star, of Panamanian registry, with a crew subject to Panamanian ship's articles. The uncontradicted evidence showed that "[l]oading of the ship, stowage and loading of automobiles, loading cargo and ship stowage" occurred whenever either vessel berthed at Port Everglades or Miami, "[p]art of it [performed] by employees of the ship and some of it by outside labor." The petitioner is a labor organization representing longshoremen in the Miami area. Although none of those doing the longshore work for the ships belonged to the union, whenever either vessel docked at Port Everglades or Miami in May 1966, petitioner stationed a picket near the vessel to patrol with a placard protesting that the longshore *197 work was being done under substandard wage conditions.[1] Respondents obtained temporary injunctive relief against the picketing from the Circuit Court for Dade County.[2] That court rejected petitioner's contention that the subject matter was pre-empted, holding that under McCulloch the picketing was beyond the reach of the regulatory power of the National Labor Relations Board, and hence could be enjoined, since it violated Florida law. The temporary injunction was affirmed by the District Court of Appeal for the Third District of Florida in a brief per curiam order citing McCulloch and Incres. 195 So. 2d 238 (1967). Thereafter the Circuit Court, without further hearing, made the injunction permanent. The District Court of Appeal again affirmed, although noting that the testimony "tended to show" that the picketing was carried on to protest against the substandard wages paid for the longshore work. 215 So. 2d 51, *198 53 (1968).[3] The Supreme Court of Florida denied review in an unreported order.
McCulloch and Incres construed the National Labor Relations Act to preclude Board jurisdiction over labor disputes concerning certain maritime operations of foreign-flag vessels. Specifically, Incres, 372 U. S., at 27, held that "maritime operations of foreign-flag ships employing alien seamen are not in `commerce' within the meaning of § 2 (6) [of the Act]." See also Benz v. Compania Naviera Hidalgo, 353 U.S. 138 (1957). This construction of the statute, however, was addressed to situations in which Board regulation of the labor relations in question would necessitate inquiry into the "internal discipline and order" of a foreign vessel, an intervention thought likely to "raise considerable disturbance not only in the field of maritime law but in our international relations as well." McCulloch, 372 U. S., at 19.
In Benz a foreign-flag vessel temporarily in an American port was picketed by an American seamen's union, supporting the demands of a foreign crew for more favorable conditions than those in the ship's articles which they signed under foreign law, upon joining the vessel in a foreign port. In McCulloch an American seamen's union petitioned for a representation election among the foreign crew members of a Honduran-flag vessel who were already represented by a Honduran union, certified under Honduran labor law. Again, in Incres the picketing was by an American union formed "for the primary purpose of organizing foreign seamen on foreign-flag ships." 372 U.S., at 25-26. In these cases, we concluded that, since the Act primarily concerns strife between *199 American employers and employees, we could reasonably expect Congress to have stated expressly any intention to include within its coverage disputes between foreign ships and their foreign crews. Thus we could not find such an intention by implication, particularly since to do so would thrust the National Labor Relations Board into "a delicate field of international relations," Benz, 353 U. S., at 147. Assertion of jurisdiction by the Board over labor relations already governed by foreign law might well provoke "vigorous protests from foreign governments and . . . international problems for our Government," McCulloch, 372 U. S., at 17, and "invite retaliatory action from other nations," id., at 21. Moreover, to construe the Act to embrace disputes involving the "internal discipline and order" of a foreign ship would be to impute to Congress the highly unlikely intention of departing from "the well-established rule of international law that the law of the flag state ordinarily governs the internal affairs of a ship," a principle frequently recognized in treaties with other countries. Ibid.
The considerations that informed the Court's construction of the statute in the cases above are clearly inapplicable to the situation presented here. The participation of some crew members in the longshore work does not obscure the fact that this dispute centered on the wages to be paid American residents, who were employed by each foreign ship not to serve as members of its crew but rather to do casual longshore work. There is no evidence that these occasional workers were involved in any internal affairs of either ship which would be governed by foreign law.[4] They were American residents, hired to work exclusively on American docks as longshoremen, *200 not as seamen on respondents' vessels. The critical inquiry then is whether the longshore activities of such American residents were within the "maritime operations of foreign-flag ships" which McCulloch, Incres, and Benz found to be beyond the scope of the Act.
We hold that their activities were not within these excluded operations. The American longshoremen's short-term, irregular and casual connection with the respective vessels plainly belied any involvement on their part with the ships' "internal discipline and order." Application of United States law to resolve a dispute over the wages paid the men for their longshore work, accordingly, would have threatened no interference in the internal affairs of foreign-flag ships likely to lead to conflict with foreign or international law. We therefore find that these longshore operations were in "commerce" within the meaning of § 2 (6), and thus might have been subject to the regulatory power of the National Labor Relations Board.[5]
The jurisdiction of the National Labor Relations Board is exclusive and pre-emptive as to activities that are "arguably subject" to regulation under § 7 or § 8 of the Act. San Diego Building Trades Council v. Garmon, 359 U.S. 236, 245 (1959). The activities of petitioner in this case met that test. The union's peaceful primary *201 picketing to protest wage rates below established area standards arguably constituted protected activity under § 7. See Steelworkers v. NLRB, 376 U.S. 492, 498-499 (1964); Garner v. Teamsters Union, 346 U.S. 485, 499-500 (1953).
Reversed.
MR. JUSTICE WHITE, with whom THE CHIEF JUSTICE and MR. | The question presented here is whether the National Labor Relations Act, as amended, 29 U.S. C. 151 et seq., pre-empts state jurisdiction to enjoin peaceful picketing protesting substandard wages paid by vessels to American longshoremen working in American ports. The Florida courts held that there was no pre-emption, citing and Steamship We granted certiorari. We reverse. In 1966 the respondents, a Liberian corporation and a Panamanian corporation, operated cruise ships to the Caribbean from Port Everglades and Miami, Florida. Respondent Ariadne Shipping Company operated the S. S. Ariadne, of Liberian registry, with a crew subject to Liberian ship's articles. Respondent Evangeline Steamship Company operated S. S. Bahama Star, of Panamanian registry, with a crew subject to Panamanian ship's articles. The uncontradicted evidence showed that "[l]oading of the ship, stowage and loading of automobiles, loading cargo and ship stowage" occurred whenever either vessel berthed at Port Everglades or Miami, "[p]art of it [performed] by employees of the ship and some of it by outside labor." The petitioner is a labor organization representing longshoremen in the Miami area. Although none of those doing the longshore work for the ships belonged to the union, whenever either vessel docked at Port Everglades or Miami in May 1966, petitioner stationed a picket near the vessel to patrol with a placard protesting that the longshore *197 work was being done under substandard wage conditions.[1] Respondents obtained temporary injunctive relief against the picketing from the Circuit Court for Dade County.[2] That court rejected petitioner's contention that the subject matter was pre-empted, holding that under the picketing was beyond the reach of the regulatory power of the National Labor Relations Board, and hence could be enjoined, since it violated Florida law. The temporary injunction was affirmed by the District Court of Appeal for the Third District of Florida in a brief per curiam order citing and Thereafter the Circuit Court, without further hearing, made the injunction permanent. The District Court of Appeal again affirmed, although noting that the testimony "tended to show" that the picketing was carried on to protest against the substandard wages paid for the longshore work.[3] The Supreme Court of Florida denied review in an unreported order. and construed the National Labor Relations Act to preclude Board jurisdiction over labor disputes concerning certain maritime operations of vessels. Specifically, held that "maritime operations of ships employing alien seamen are not in `commerce' within the meaning of 2 (6) [of the Act]." See also This construction of the statute, however, was addressed to situations in which Board regulation of the labor relations in question would necessitate inquiry into the "internal discipline and order" of a foreign vessel, an intervention thought likely to "raise considerable disturbance not only in the field of maritime law but in our international relations as well." In Benz a vessel temporarily in an American port was picketed by an American seamen's union, supporting the demands of a foreign crew for more favorable conditions than those in the ship's articles which they signed under foreign law, upon joining the vessel in a foreign port. In an American seamen's union petitioned for a representation election among the foreign crew members of a Honduran-flag vessel who were already represented by a Honduran union, certified under Honduran labor law. Again, in the picketing was by an American union formed "for the primary purpose of organizing foreign seamen on ships." -26. In these cases, we concluded that, since the Act primarily concerns strife between *199 American employers and employees, we could reasonably expect Congress to have stated expressly any intention to include within its coverage disputes between foreign ships and their foreign crews. Thus we could not find such an intention by implication, particularly since to do so would thrust the National Labor Relations Board into "a delicate field of international relations," Benz, Assertion of jurisdiction by the Board over labor relations already governed by foreign law might well provoke "vigorous protests from foreign governments and international problems for our Government," and "invite retaliatory action from other nations," Moreover, to construe the Act to embrace disputes involving the "internal discipline and order" of a foreign ship would be to impute to Congress the highly unlikely intention of departing from "the well-established rule of international law that the law of the flag state ordinarily governs the internal affairs of a ship," a principle frequently recognized in treaties with other countries. The considerations that informed the Court's construction of the statute in the cases above are clearly inapplicable to the situation presented here. The participation of some crew members in the longshore work does not obscure the fact that this dispute centered on the wages to be paid American residents, who were employed by each foreign ship not to serve as members of its crew but rather to do casual longshore work. There is no evidence that these occasional workers were involved in any internal affairs of either ship which would be governed by foreign law.[4] They were American residents, hired to work exclusively on American docks as longshoremen, *200 not as seamen on respondents' vessels. The critical inquiry then is whether the longshore activities of such American residents were within the "maritime operations of ships" which and Benz found to be beyond the scope of the Act. We hold that their activities were not within these excluded operations. The American longshoremen's short-term, irregular and casual connection with the respective vessels plainly belied any involvement on their part with the ships' "internal discipline and order." Application of United States law to resolve a dispute over the wages paid the men for their longshore work, accordingly, would have threatened no interference in the internal affairs of ships likely to lead to conflict with foreign or international law. We therefore find that these longshore operations were in "commerce" within the meaning of 2 (6), and thus might have been subject to the regulatory power of the National Labor Relations Board.[5] The jurisdiction of the National Labor Relations Board is exclusive and pre-emptive as to activities that are "arguably subject" to regulation under 7 or 8 of the Act. San Diego Building Trades The activities of petitioner in this case met that test. The union's peaceful primary *201 picketing to protest wage rates below established area standards arguably constituted protected activity under 7. See ; Reversed. MR. JUSTICE WHITE, with whom THE CHIEF JUSTICE and MR. |
Justice Rehnquist | second_dissenting | false | Brooks v. Tennessee | 1972-06-07T00:00:00 | null | https://www.courtlistener.com/opinion/108551/brooks-v-tennessee/ | https://www.courtlistener.com/api/rest/v3/clusters/108551/ | 1,972 | 1971-123 | 2 | 6 | 3 | The Court's invalidation of the Tennessee statute challenged here is based upon both its stated repugnance to the privilege against self-incrimination and its infringement of counsel's right to plan the presentation of his case.
While it is possible that this statute regulating the order of proof in criminal trials might in another case raise issues bearing on the privilege against self-incrimination, its application in this case certainly has not done so. Petitioner Brooks never took the stand, and it is therefore difficult to see how his right to remain silent was in any way infringed by the State. Whatever may be the operation of the statute in other situations, petitioner cannot assert that it infringed his privilege against self-incriminationa privilege which he retained inviolate throughout the trial.
The Court's alternative holding that the Tennessee statute infringes the right of petitioner's counsel to plan the presentation of his case creates a far more dominant role for defense counsel than that indicated by the language of the Constitution. While cases such as Gideon v. Wainwright, 372 U.S. 335 (1963), establish the fundamental nature of the constitutional right to the assistance of counsel, no case previously decided by this Court elevates defense counsel to the role of impresario with respect to decisions as to the order in which witnesses shall testify at the trial.
*618 This Court and other courts have repeatedly held that the control of the order of proof at trial is a matter primarily entrusted to the discretion of the trial court. See, e. g., Thiede v. Utah Territory, 159 U.S. 510, 519 (1895); Nelson v. United States, 415 F.2d 483, 487 (CA5 1969), cert. denied, 396 U.S. 1060 (1970); Horowitz v. Bokron, 337 Mass. 739, 151 N.E.2d 480 (1958); Small v. State, 165 Neb. 381, 85 N.W.2d 712 (1957). The notion that the Sixth Amendment allows defense counsel to overrule the trial judge as to the order in which witnesses shall be called stands on its head the traditional understanding of the defendant's right to counsel. Defense counsel sits at the side of the accused, not to take over the conduct of the trial, but to advise the accused as to various choices available to him within the limits of existing state practice and procedure.
I could understand, though I would not agree with, a holding that under these circumstances the Fourteenth Amendment conferred a right upon the defendant, counseled or not, to decide at what point during the presentation of his case to take the stand. But to cast the constitutional issue in terms of violation of the defendant's right to counsel suggests that defense counsel has an authority of constitutional dimension to determine the order of proof at trial. It is inconceivable to me that the Court would permit every preference of defense counsel as to the order in which defense witnesses were to be called to prevail over a contrary ruling of the trial judge in the exercise of his traditional discretion to control the order of proof at trial. The crucial fact here is not that counsel wishes to have a witness take the stand at a particular time, but that the defendant whether advised by counsel or otherwisewishes to determine at what point during the presentation of his case he desires to take the stand. Logically the benefit of today's ruling should be available to a defendant conducting *619 his own defense who has waived the right of counsel, but since the Court insists on putting the issue in terms of the advice of counsel, rather than in terms of defense control over the timing of defendant's appearance, the application of today's holding to that situation is by no means clear.
The Tennessee statute in question is, as the Court notes in its opinion, based upon an accommodation between the traditional policy of sequestering prospective witnesses before they testify and the right of the criminal defendant to be present during his trial. Since the defendant may not be sequestered against his will while other witnesses are testifying, the State has placed a more limited restriction on the presentation of his testimony. The defendant is required to testify, if he chooses to do so, as the first witness for the defense. The State applies the same rule evenhandedly to the prosecuting witness, if there be one; he, too, must testify first. While it is perfectly true that the prosecution is given no constitutional right to remain silent, this fact does not detract from the evident fairness of Tennessee's effort to accommodate the two conflicting policies.
The state rule responds to the fear that interested parties, if allowed to present their own testimony after other disinterested witnesses have testified, may well shape their version of events in a way inconsistent with their oath as witnesses. This fear is not groundless, nor is its importance denigrated by vague generalities such as the statement that "our adversary system reposes judgment of the credibility of all witnesses in the jury." Ante, at 611. Assuredly the traditional common-law charge to the jury confides to that body the determination as to the truth or falsity of the testimony of each witness. But the fact that the jury is instructed to make such a determination in reaching its verdict has never been thought to militate against *620 the desirability, to say nothing of the constitutionality, of additional inhibitions against perjury during the course of a trial. The traditional policy of sequestering nonparty witnesses, the requirement of an oath on the part of all witnesses, and the opportunity afforded for cross-examination of witnesses are but examples of such inhibitions. As a matter of constitutional judgment it may be said that the effectuation of this interest has been accomplished by Tennessee at too high a price, but the importance of the interest itself cannot rationally be dispelled by loose assertions about the role of the jury.
In view of the strong sanction in history and precedent for control of the order of proof by the trial court, I think that Tennessee's effort here to restrict the choice of the defendant as to when he shall testify, in the interest of minimizing the temptation to perjury, does not violate the Fourteenth Amendment. I would therefore affirm the judgment below.
| The Court's invalidation of the Tennessee statute challenged here is based upon both its stated repugnance to the privilege against self-incrimination and its infringement of counsel's right to plan the presentation of his case. While it is possible that this statute regulating the order of proof in criminal trials might in another case raise issues bearing on the privilege against self-incrimination, its application in this case certainly has not done so. Petitioner Brooks never took the stand, and it is therefore difficult to see how his right to remain silent was in any way infringed by the State. Whatever may be the operation of the statute in other situations, petitioner cannot assert that it infringed his privilege against self-incriminationa privilege which he retained inviolate throughout the trial. The Court's alternative holding that the Tennessee statute infringes the right of petitioner's counsel to plan the presentation of his case creates a far more dominant role for defense counsel than that indicated by the language of the Constitution. While cases such as establish the fundamental nature of the constitutional right to the assistance of counsel, no case previously decided by this Court elevates defense counsel to the role of impresario with respect to decisions as to the order in which witnesses shall testify at the trial. *618 This Court and other courts have repeatedly held that the control of the order of proof at trial is a matter primarily entrusted to the discretion of the trial court. See, e. g., ; cert. denied, ; ; The notion that the Sixth Amendment allows defense counsel to overrule the trial judge as to the order in which witnesses shall be called stands on its head the traditional understanding of the defendant's right to counsel. Defense counsel sits at the side of the accused, not to take over the conduct of the trial, but to advise the accused as to various choices available to him within the limits of existing state practice and procedure. I could understand, though I would not agree with, a holding that under these circumstances the Fourteenth Amendment conferred a right upon the defendant, counseled or not, to decide at what point during the presentation of his case to take the stand. But to cast the constitutional issue in terms of violation of the defendant's right to counsel suggests that defense counsel has an authority of constitutional dimension to determine the order of proof at trial. It is inconceivable to me that the Court would permit every preference of defense counsel as to the order in which defense witnesses were to be called to prevail over a contrary ruling of the trial judge in the exercise of his traditional discretion to control the order of proof at trial. The crucial fact here is not that counsel wishes to have a witness take the stand at a particular time, but that the defendant whether advised by counsel or otherwisewishes to determine at what point during the presentation of his case he desires to take the stand. Logically the benefit of today's ruling should be available to a defendant conducting *619 his own defense who has waived the right of counsel, but since the Court insists on putting the issue in terms of the advice of counsel, rather than in terms of defense control over the timing of defendant's appearance, the application of today's holding to that situation is by no means clear. The Tennessee statute in question is, as the Court notes in its opinion, based upon an accommodation between the traditional policy of sequestering prospective witnesses before they testify and the right of the criminal defendant to be present during his trial. Since the defendant may not be sequestered against his will while other witnesses are testifying, the State has placed a more limited restriction on the presentation of his testimony. The defendant is required to testify, if he chooses to do so, as the first witness for the defense. The State applies the same rule evenhandedly to the prosecuting witness, if there be one; he, too, must testify first. While it is perfectly true that the prosecution is given no constitutional right to remain silent, this fact does not detract from the evident fairness of Tennessee's effort to accommodate the two conflicting policies. The state rule responds to the fear that interested parties, if allowed to present their own testimony after other disinterested witnesses have testified, may well shape their version of events in a way inconsistent with their oath as witnesses. This fear is not groundless, nor is its importance denigrated by vague generalities such as the statement that "our adversary system reposes judgment of the credibility of all witnesses in the jury." Ante, at 611. Assuredly the traditional common-law charge to the jury confides to that body the determination as to the truth or falsity of the testimony of each witness. But the fact that the jury is instructed to make such a determination in reaching its verdict has never been thought to militate against *620 the desirability, to say nothing of the constitutionality, of additional inhibitions against perjury during the course of a trial. The traditional policy of sequestering nonparty witnesses, the requirement of an oath on the part of all witnesses, and the opportunity afforded for cross-examination of witnesses are but examples of such inhibitions. As a matter of constitutional judgment it may be said that the effectuation of this interest has been accomplished by Tennessee at too high a price, but the importance of the interest itself cannot rationally be dispelled by loose assertions about the role of the jury. In view of the strong sanction in history and precedent for control of the order of proof by the trial court, I think that Tennessee's effort here to restrict the choice of the defendant as to when he shall testify, in the interest of minimizing the temptation to perjury, does not violate the Fourteenth Amendment. I would therefore affirm the judgment below. |
Justice Thomas | majority | false | Manrique v. United States | 2017-04-19T00:00:00 | null | https://www.courtlistener.com/opinion/4384110/manrique-v-united-states/ | https://www.courtlistener.com/api/rest/v3/clusters/4384110/ | 2,017 | 2016-003 | 1 | 6 | 2 | Sentencing courts are required to impose restitution as
part of the sentence for specified crimes. But the amount
to be imposed is not always known at the time of sentenc-
ing. When that is the case, the court may enter an initial
judgment imposing certain aspects of a defendant’s sen-
tence, such as a term of imprisonment, while deferring a
determination of the amount of restitution until entry of a
later, amended judgment.
We must decide whether a single notice of appeal, filed
between the initial judgment and the amended judgment,
is sufficient to invoke appellate review of the later-
determined restitution amount. We hold that it is not, at
least where, as here, the Government objects to the de-
fendant’s failure to file a notice of appeal following the
amended judgment.
I
After federal agents found more than 300 files contain-
ing child pornography on his computer, petitioner Marcelo
Manrique pleaded guilty to possessing a visual depiction
of a minor engaging in sexually explicit conduct, in viola-
2 MANRIQUE v. UNITED STATES
Opinion of the Court
tion of 18 U.S. C. §§2252(a)(4)(B) and (b)(2). Under the
Mandatory Victims Restitution Act of 1996 (MVRA), the
District Court was required to order petitioner to “make
restitution to the victim of the offense.” §3663A(a)(1); see
§§2259(a), (b)(2) (“An order of restitution under this sec-
tion shall be issued and enforced in accordance with
[§]3664 in the same manner as an order under [§]3663A”).
On June 24, 2014, the District Court entered an initial
judgment sentencing petitioner to 72 months of imprison-
ment and a life term of supervised release. At the sen-
tencing hearing, the court acknowledged that restitution
was mandatory. But, consistent with the MVRA, the court
postponed determining the victims’ damages, which had
not yet been ascertained. See, e.g., §3664(d)(5); Dolan v.
United States, 560 U.S. 605, 607–608 (2010). Accordingly,
the judgment expressly deferred “determination of restitu-
tion” and noted that an “Amended Judgment . . . w[ould]
be entered after such determination.” App. 39. On July 8,
petitioner filed a notice of appeal “from the final judgment
and sentence entered in this action on the 24th day of
June, 2014.” Id., at 42.
The District Court held a restitution hearing on Sep-
tember 17, 2014. Only one of the victims sought restitu-
tion. The court ordered petitioner to pay $4,500 in restitu-
tion to her and entered an amended judgment the next
day imposing that sentence. Petitioner did not file a
second notice of appeal from the court’s order imposing
restitution or from the amended judgment.
Notwithstanding his failure to file a second notice of
appeal, petitioner challenged the restitution amount
before the Eleventh Circuit, arguing in his brief that the
Government had not shown he was the proximate cause of
the victim’s injuries and that the restitution amount bore
no rational relationship to the damages she claimed. The
Government countered that petitioner had forfeited his
right to challenge the restitution amount by failing to file
Cite as: 581 U. S. ____ (2017) 3
Opinion of the Court
a second notice of appeal.
The Court of Appeals agreed that petitioner could not
challenge the restitution amount and declined to consider
his challenge. 618 Fed. Appx. 579, 583–584 (CA11 2015)
( per curiam). We granted certiorari, 578 U. S. ___ (2016),
and now affirm.
II
A
To secure appellate review of a judgment or order, a
party must file a notice of appeal from that judgment or
order. Filing a notice of appeal transfers adjudicatory
authority from the district court to the court of appeals.
The statute that governs appeals of criminal sentences, 18
U.S. C. §3742(a), provides that a “defendant may file a
notice of appeal in the district court for review of an oth-
erwise final sentence” in certain specified circumstances.
See United States v. Ruiz, 536 U.S. 622, 626−628 (2002).
And Federal Rule of Appellate Procedure 3(a)(1) specifies
that “[a]n appeal permitted by law as of right . . . may be
taken only by filing a notice of appeal with the district
clerk within the time allowed by Rule 4.” (Emphasis
added.)
Both §3742(a) and Rule 4 contemplate that the defend-
ant will file the notice of appeal after the district court has
decided the issue sought to be appealed. Section
3742(a)(1) permits the defendant to file a notice of appeal
of a sentence that “was imposed in violation of law.”
(Emphasis added.) And Rule 4(b)(1)(A)(i) provides gener-
ally that, “[i]n a criminal case, a defendant’s notice of
appeal must be filed in the district court within 14 days
after . . . the entry of either the judgment or the order
being appealed.” (Emphasis added.)
Petitioner filed only one notice of appeal, which preceded
by many months the sentence and judgment imposing
restitution. His notice of appeal could not have been “for
4 MANRIQUE v. UNITED STATES
Opinion of the Court
review” of the restitution order, §3742(a), and it was not
filed within the timeframe allowed by Rule 4. He thus
failed to properly appeal under the statute and the Rules
the amended judgment imposing restitution.
The Government contends that filing a notice of appeal
from the judgment imposing restitution is a jurisdictional
prerequisite to securing appellate review of the restitution
amount. See, e.g., Brief for United States 28–31. This
position follows, according to the Government, from many
of our cases emphasizing the “jurisdictional significance”
of a notice of appeal. E.g., Griggs v. Provident Consumer
Discount Co., 459 U.S. 56, 58 (1982) ( per curiam). Be-
cause the notice of appeal is jurisdictional, the Govern-
ment explains, the Court of Appeals was required to dis-
miss petitioner’s appeal regardless of whether the
Government raised the issue.
We do not need to decide in this case whether the Gov-
ernment is correct. The requirement that a defendant file
a timely notice of appeal from an amended judgment
imposing restitution is at least a mandatory claim-
processing rule. See Greenlaw v. United States, 554 U.S.
237, 252–253 (2008); see also Rule 3(a)(2) (“An appellant’s
failure to take any step other than the timely filing of a
notice of appeal does not affect the validity of the appeal,
but is ground only for the court of appeals to act as it
considers appropriate, including dismissing the appeal”
(emphasis added)). Mandatory claim-processing rules
“seek to promote the orderly progress of litigation by
requiring that the parties take certain procedural steps at
certain specified times.” Henderson v. Shinseki, 562 U.S.
428, 435 (2011). Unlike jurisdictional rules, mandatory
claim-processing rules may be forfeited “if the party as-
serting the rule waits too long to raise the point.” Eber-
hart v. United States, 546 U.S. 12, 15 (2005) ( per curiam)
(internal quotation marks omitted). If a party “properly
raise[s] them,” however, they are “unalterable.” Id., at 15,
Cite as: 581 U. S. ____ (2017) 5
Opinion of the Court
19.
The Government timely raised petitioner’s failure to file
a notice of appeal from the amended judgment imposing
restitution before the Court of Appeals. See Brief for
United States in No. 14–13029 (CA11), pp. 22–25 (arguing
that petitioner “waived his right to appeal the district
court’s order of restitution by failing to file a notice of
appeal from that order” (capitalization omitted)). Accord-
ingly, “the court’s duty to dismiss the appeal was manda-
tory.” Eberhart, supra, at 18.
B
Petitioner disputes this conclusion, arguing that his
single notice of appeal sufficed under the Rules to appeal
both the initial judgment and the amended judgment
imposing restitution. As we understand it, his argument
depends on two premises: First, in a deferred restitution
case, there is only one “judgment,” as that term is used in
Rules 4(b)(1) and (b)(2); and second, so long as a notice of
appeal is filed after the initial judgment, it “springs for-
ward” under Rule 4(b)(2) to appeal the amended judgment
imposing restitution. We reject each of these premises.
1
Petitioner argues that the initial judgment deferring
restitution and the amended judgment imposing a specific
restitution amount merge to become “the judgment” refer-
enced in the Federal Rules. See Rule 4(b)(1)(A)(i) (notice
of appeal must be filed within 14 days after “the entry of
. . . the judgment . . . being appealed”); Rule 4(b)(2) (“Filing
Before Entry of Judgment”). He argues that his notice of
appeal, which was filed within 14 days of the initial judg-
ment, was therefore sufficient to invoke appellate review
of the merged judgment.
Petitioner’s approach is inconsistent with our reasoning
in Dolan, 560 U.S. 605. The petitioner in that case ar-
6 MANRIQUE v. UNITED STATES
Opinion of the Court
gued that the amended judgment imposing restitution is
the only final, appealable judgment in a deferred restitu-
tion case. See id., at 616. Although we did not decide
“whether or when a party can, or must, appeal”—the
question presented here—we were not persuaded by the
argument that “a sentencing judgment is not ‘final’ until it
contains a definitive determination of the amount of resti-
tution.” Id., at 617–618. To the contrary, we recognized
“strong arguments” supporting the proposition that both
the “initial judgment [that] imposed a sentence of impris-
onment and supervised release” and the subsequent “ ‘sen-
tence that impose[d] an order of restitution’ ” were each
immediately appealable final judgments. Ibid. (citing 18
U.S. C. §§3582(b) (imprisonment), 3583(a) (supervised
release), and 3664(o) (restitution)). Consequently, we
were not surprised “to find instances where a defendant
ha[d] appealed from the entry of a judgment containing an
initial sentence that includes a term of imprisonment” and
“subsequently appealed from a later order setting forth
the final amount of restitution.” 560 U.S., at 618. Our
analysis in Dolan thus makes clear that deferred restitu-
tion cases involve two appealable judgments, not one.*
2
Petitioner’s reliance on Rule 4(b)(2) is also misplaced.
That Rule provides that a “notice of appeal filed after the
court announces a decision, sentence, or order—but before
the entry of the judgment or order—is treated as filed on
the date of and after the entry.” A prematurely filed
notice of appeal will become effective under the Rule to
challenge a later-entered judgment in some circumstances.
As this Court explained in construing Rule 4(a)(2)’s paral-
——————
* We do not intend to call into question this Court’s decision in Corey
v. United States, 375 U.S. 169, 176 (1963) (holding that a defendant
may challenge his conviction after a single notice of appeal filed from a
final sentence imposed under §4208(b)).
Cite as: 581 U. S. ____ (2017) 7
Opinion of the Court
lel provision for civil cases, the Rule “was intended to
protect the unskilled litigant who files a notice of appeal
from a decision that he reasonably but mistakenly believes
to be a final judgment, while failing to file a notice of
appeal from the actual final judgment.” FirsTier Mortgage
Co. v. Investors Mortgage Ins. Co., 498 U.S. 269, 276
(1991).
By its own terms, however, Rule 4(b)(2) applies only to a
notice of appeal filed after a sentence has been “an-
nounce[d]” and before the judgment imposing the sentence
is entered on the docket. See Rule 4(b)(6) (“A judgment or
order is entered for purposes of this Rule 4(b) when it is
entered on the criminal docket”). If the court has not yet
decided the issue that the appellant seeks to appeal, then
the Rule does not come into play. Accordingly, it does not
apply where a district court enters an initial judgment
deferring restitution and subsequently amends the judg-
ment to include the sentence of restitution. By deferring
restitution, the court is declining to announce a sentence.
When petitioner filed his notice of appeal in this case,
the District Court had observed only that restitution was
“mandatory.” App. 27. The court did not announce the
restitution amount (or even hold a hearing on the issue)
until months later. Even if describing restitution as man-
datory could qualify as a “sentence” that the District Court
“announced” under Rule 4(b)(2), petitioner has never
disputed that restitution is mandatory for his offense.
Rather, he argued on appeal that the amount of the resti-
tution imposed—an issue the court did not consider until
months later—is unlawful. Because petitioner’s notice of
appeal was filed well before the District Court announced
the sentence imposing $4,500 in restitution, the notice of
appeal did not “spring forward” to become effective on the
date the court entered its amended judgment imposing
that sentence.
8 MANRIQUE v. UNITED STATES
Opinion of the Court
C
Finally, petitioner argues in the alternative that any
defect in his notice of appeal should be overlooked as
harmless error, citing Lemke v. United States, 346 U.S.
325 (1953) (per curiam). In that case, the petitioner filed a
notice of appeal the day after his sentence was announced
but three days before the judgment was entered. Id., at
326. His notice of appeal was dismissed as premature
under Federal Rule of Criminal Procedure 37(a)(2), which
then governed notices of appeal in criminal cases. This
Court reversed on the ground that the premature filing
was harmless error under Rule 52(a). Ibid.
The Court’s holding in Lemke does not apply to petitioner’s
failure to file a notice of appeal from the amended judg-
ment. Lemke has been superseded by the Federal Rules of
Appellate Procedure in two ways. First, the Lemke peti-
tioner’s notice of appeal would now be timely under Rule
4(b)(2). As discussed in Part II–B–2, supra, petitioner
here cannot take advantage of that rule. Second, Rule
3(a)(2) now provides the consequences for litigant errors
associated with filing a notice of appeal. The court of
appeals may, in its discretion, overlook defects in a notice
of appeal other than the failure to timely file a notice. It
may not overlook the failure to file a notice of appeal at
all. The filing of a notice of appeal from an amended
judgment imposing restitution is at least a mandatory
claim-processing rule, Part II–A, supra, meaning that the
requirement to file such a notice is unalterable, so long as
the opposing party raises the issue. By definition, manda-
tory claim-processing rules, although subject to forfeiture,
are not subject to harmless-error analysis.
Petitioner in this case did not file a defective notice of
appeal from the amended judgment imposing restitution,
but rather failed altogether to file a notice of appeal from
the amended judgment. Courts do not have discretion to
overlook such an error, at least where it is called to their
Cite as: 581 U. S. ____ (2017) 9
Opinion of the Court
attention.
* * *
We hold that a defendant who wishes to appeal an order
imposing restitution in a deferred restitution case must
file a notice of appeal from that order. Because petitioner
failed to do so, and the Government objected, the Court of
Appeals properly declined to consider his challenge to the
amount of restitution imposed. The judgment of the Court
of Appeals, accordingly, is affirmed.
It is so ordered.
JUSTICE GORSUCH took no part in the consideration or
decision of this case.
Cite as: 581 U. S. ____ (2017) 1
GINSBURG, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 15–7250
_________________
MARCELO MANRIQUE, PETITIONER v. | Sentencing courts are required to impose restitution as part of the sentence for specified crimes. But the amount to be imposed is not always known at the time of sentenc- ing. When that is the case, the court may enter an initial judgment imposing certain aspects of a defendant’s sen- tence, such as a term of imprisonment, while deferring a determination of the amount of restitution until entry of a later, amended judgment. We must decide whether a single notice of appeal, filed between the initial judgment and the amended judgment, is sufficient to invoke appellate review of the later- determined restitution amount. We hold that it is not, at least where, as here, the Government objects to the de- fendant’s failure to file a notice of appeal following the amended judgment. I fter federal agents found more than 300 files contain- ing child pornography on his computer, petitioner Marcelo Manrique pleaded guilty to possessing a visual depiction of a minor engaging in sexually explicit conduct, in viola- MNRIQUE v. UNITED STTES Opinion of the Court tion of 18 U.S. C. and (b)(). Under the Mandatory Victims Restitution ct of 1996 (MVR), the District Court was required to order petitioner to “make restitution to the victim of the offense.” see (b)() ccordingly, the judgment expressly deferred “determination of restitu- tion” and noted that an “mended Judgment w[ould] be entered after such determination.” pp. 39. On July 8, petitioner filed a notice of appeal “from the final judgment and sentence entered in this action on the 4th day of June, 014.” The District Court held a restitution hearing on Sep- tember 17, 014. Only one of the victims sought restitu- tion. The court ordered petitioner to pay $4,500 in restitu- tion to her and entered an amended judgment the next day imposing that sentence. Petitioner did not file a second notice of appeal from the court’s order imposing restitution or from the amended judgment. Notwithstanding his failure to file a second notice of appeal, petitioner challenged the restitution amount before the Eleventh Circuit, arguing in his brief that the Government had not shown he was the proximate cause of the victim’s injuries and that the restitution amount bore no rational relationship to the damages she claimed. The Government countered that petitioner had forfeited his right to challenge the restitution amount by failing to file Cite as: 1 U. S. (017) 3 Opinion of the Court a second notice of appeal. The Court of ppeals agreed that petitioner could not challenge the restitution amount and declined to consider his challenge. We granted certiorari, 578 U. S. (016), and now affirm. II To secure appellate review of a judgment or order, a party must file a notice of appeal from that judgment or order. Filing a notice of appeal transfers adjudicatory authority from the district court to the court of appeals. The statute that governs appeals of criminal sentences, 18 U.S. C. provides that a “defendant may file a notice of appeal in the district court for review of an oth- erwise final sentence” in certain specified circumstances. See United nd Federal Rule of ppellate Procedure 3(a)(1) specifies that “[a]n appeal permitted by law as of right may be taken only by filing a notice of appeal with the district clerk within the time allowed by Rule 4.” (Emphasis added.) Both and Rule 4 contemplate that the defend- ant will file the notice of appeal after the district court has decided the issue sought to be appealed. Section 374(a)(1) permits the defendant to file a notice of appeal of a sentence that “was imposed in violation of law.” (Emphasis added.) nd Rule 4(b)(1)()(i) provides gener- ally that, “[i]n a criminal case, a defendant’s notice of appeal must be filed in the district court within 14 days after the entry of either the judgment or the order being appealed.” (Emphasis added.) Petitioner filed only one notice of appeal, which preceded by many months the sentence and judgment imposing restitution. His notice of appeal could not have been “for 4 MNRIQUE v. UNITED STTES Opinion of the Court review” of the restitution order, and it was not filed within the timeframe allowed by Rule 4. He thus failed to properly appeal under the statute and the Rules the amended judgment imposing restitution. The Government contends that filing a notice of appeal from the judgment imposing restitution is a jurisdictional prerequisite to securing appellate review of the restitution amount. See, e.g., Brief for United States 8–31. This position follows, according to the Government, from many of our cases emphasizing the “jurisdictional significance” of a notice of appeal. E.g., Be- cause the notice of appeal is jurisdictional, the Govern- ment explains, the Court of ppeals was required to dis- miss petitioner’s appeal regardless of whether the Government raised the issue. We do not need to decide in this case whether the Gov- ernment is correct. The requirement that a defendant file a timely notice of appeal from an amended judgment imposing restitution is at least a mandatory claim- processing rule. See Greenlaw v. United States, 554 U.S. 37, 5–53 (008); see also Rule 3(a)() (“n appellant’s failure to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for the court of appeals to act as it considers appropriate, including dismissing the appeal” (emphasis added)). Mandatory claim-processing rules “seek to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain specified times.” Henderson v. Shinseki, 56 U.S. 48, 435 (011). Unlike jurisdictional rules, mandatory claim-processing rules may be forfeited “if the party as- serting the rule waits too long to raise the point.” Eber- (internal quotation marks omitted). If a party “properly raise[s] them,” however, they are “unalterable.” at Cite as: 1 U. S. (017) 5 Opinion of the Court 19. The Government timely raised petitioner’s failure to file a notice of appeal from the amended judgment imposing restitution before the Court of ppeals. See Brief for United States in No. 14–1309 (C11), pp. –5 (arguing that petitioner “waived his right to appeal the district court’s order of restitution by failing to file a notice of appeal from that order” (capitalization omitted)). ccord- ingly, “the court’s duty to dismiss the appeal was manda- tory.” B Petitioner disputes this conclusion, arguing that his single notice of appeal sufficed under the Rules to appeal both the initial judgment and the amended judgment imposing restitution. s we understand it, his argument depends on two premises: First, in a deferred restitution case, there is only one “judgment,” as that term is used in Rules 4(b)(1) and (b)(); and second, so long as a notice of appeal is filed after the initial judgment, it “springs for- ward” under Rule 4(b)() to appeal the amended judgment imposing restitution. We reject each of these premises. 1 Petitioner argues that the initial judgment deferring restitution and the amended judgment imposing a specific restitution amount merge to become “the judgment” refer- enced in the Federal Rules. See Rule 4(b)(1)()(i) (notice of appeal must be filed within 14 days after “the entry of the judgment being appealed”); Rule 4(b)() (“Filing Before Entry of Judgment”). He argues that his notice of appeal, which was filed within 14 days of the initial judg- ment, was therefore sufficient to invoke appellate review of the merged judgment. Petitioner’s approach is inconsistent with our reasoning in Dolan, The petitioner in that case ar- 6 MNRIQUE v. UNITED STTES Opinion of the Court gued that the amended judgment imposing restitution is the only final, appealable judgment in a deferred restitu- tion case. See lthough we did not decide “whether or when a party can, or must, appeal”—the question presented here—we were not persuaded by the argument that “a sentencing judgment is not ‘final’ until it contains a definitive determination of the amount of resti- tution.” at 617–618. To the contrary, we recognized “strong arguments” supporting the proposition that both the “initial judgment [that] imposed a sentence of impris- onment and supervised release” and the subsequent “ ‘sen- tence that impose[d] an order of restitution’ ” were each immediately appealable final judgments. (citing 18 U.S. C. §§3(b) (imprisonment), 33(a) (supervised release), and 3664(o) (restitution)). Consequently, we were not surprised “to find instances where a defendant ha[d] appealed from the entry of a judgment containing an initial sentence that includes a term of imprisonment” and “subsequently appealed from a later order setting forth the final amount of restitution.” Our analysis in Dolan thus makes clear that deferred restitu- tion cases involve two appealable judgments, not one.* Petitioner’s reliance on Rule 4(b)() is also misplaced. That Rule provides that a “notice of appeal filed after the court announces a decision, sentence, or order—but before the entry of the judgment or order—is treated as filed on the date of and after the entry.” prematurely filed notice of appeal will become effective under the Rule to challenge a later-entered judgment in some circumstances. s this Court explained in construing Rule 4(a)()’s paral- —————— * We do not intend to call into question this Court’s decision in Corey v. United States, (holding that a defendant may challenge his conviction after a single notice of appeal filed from a final sentence imposed under Cite as: 1 U. S. (017) 7 Opinion of the Court lel provision for civil cases, the Rule “was intended to protect the unskilled litigant who files a notice of appeal from a decision that he reasonably but mistakenly believes to be a final judgment, while failing to file a notice of appeal from the actual final judgment.” FirsTier Mortgage (1991). By its own terms, however, Rule 4(b)() applies only to a notice of appeal filed after a sentence has been “an- nounce[d]” and before the judgment imposing the sentence is entered on the docket. See Rule 4(b)(6) (“ judgment or order is entered for purposes of this Rule 4(b) when it is entered on the criminal docket”). If the court has not yet decided the issue that the appellant seeks to appeal, then the Rule does not come into play. ccordingly, it does not apply where a district court enters an initial judgment deferring restitution and subsequently amends the judg- ment to include the sentence of restitution. By deferring restitution, the court is declining to announce a sentence. When petitioner filed his notice of appeal in this case, the District Court had observed only that restitution was “mandatory.” pp. 7. The court did not announce the restitution amount (or even hold a hearing on the issue) until months later. Even if describing restitution as man- datory could qualify as a “sentence” that the District Court “announced” under Rule 4(b)(), petitioner has never disputed that restitution is mandatory for his offense. Rather, he argued on appeal that the amount of the resti- tution imposed—an issue the court did not consider until months later—is unlawful. Because petitioner’s notice of appeal was filed well before the District Court announced the sentence imposing $4,500 in restitution, the notice of appeal did not “spring forward” to become effective on the date the court entered its amended judgment imposing that sentence. 8 MNRIQUE v. UNITED STTES Opinion of the Court C Finally, petitioner argues in the alternative that any defect in his notice of appeal should be overlooked as harmless error, citing Lemke v. United States, 346 U.S. 35 (1953) (per curiam). In that case, the petitioner filed a notice of appeal the day after his sentence was announced but three days before the judgment was entered. at 36. His notice of appeal was dismissed as premature under Federal Rule of Criminal Procedure 37(a)(), which then governed notices of appeal in criminal cases. This Court reversed on the ground that the premature filing was harmless error under Rule 5(a). The Court’s holding in Lemke does not apply to petitioner’s failure to file a notice of appeal from the amended judg- ment. Lemke has been superseded by the Federal Rules of ppellate Procedure in two ways. First, the Lemke peti- tioner’s notice of appeal would now be timely under Rule 4(b)(). s discussed in Part II–B–, petitioner here cannot take advantage of that rule. Second, Rule 3(a)() now provides the consequences for litigant errors associated with filing a notice of appeal. The court of appeals may, in its discretion, overlook defects in a notice of appeal other than the failure to timely file a notice. It may not overlook the failure to file a notice of appeal at all. The filing of a notice of appeal from an amended judgment imposing restitution is at least a mandatory claim-processing rule, Part II–, meaning that the requirement to file such a notice is unalterable, so long as the opposing party raises the issue. By definition, manda- tory claim-processing rules, although subject to forfeiture, are not subject to harmless-error analysis. Petitioner in this case did not file a defective notice of appeal from the amended judgment imposing restitution, but rather failed altogether to file a notice of appeal from the amended judgment. Courts do not have discretion to overlook such an error, at least where it is called to their Cite as: 1 U. S. (017) 9 Opinion of the Court attention. * * * We hold that a defendant who wishes to appeal an order imposing restitution in a deferred restitution case must file a notice of appeal from that order. Because petitioner failed to do so, and the Government objected, the Court of ppeals properly declined to consider his challenge to the amount of restitution imposed. The judgment of the Court of ppeals, accordingly, is affirmed. It is so ordered. JUSTICE GORSUCH took no part in the consideration or decision of this case. Cite as: 1 U. S. (017) 1 GINSBURG, J., dissenting SUPREME COURT OF THE UNITED STTES No. –750 MRCELO MNRIQUE, PETITIONER v. |
Justice Marshall | majority | false | Fisher v. Berkeley | 1986-04-28T00:00:00 | null | https://www.courtlistener.com/opinion/111607/fisher-v-berkeley/ | https://www.courtlistener.com/api/rest/v3/clusters/111607/ | 1,986 | 1985-044 | 1 | 8 | 1 | The question presented here is whether a rent control ordinance enacted by a municipality pursuant to popular initiative is unconstitutional because pre-empted by the Sherman Act.
I
In June 1980, the electorate of the city of Berkeley, California, enacted an initiative entitled "Ordinance 5261-N. S., Rent Stabilization and Eviction for Good Cause Ordinance" *262 (hereafter Ordinance). Section 3 of the Ordinance stated the measure's purposes:[1]
"The purposes of this Ordinance are to regulate residential rent increases in the City of Berkeley and to protect tenants from unwarranted rent increases and arbitrary, discriminatory, or retaliatory evictions, in order to help maintain the diversity of the Berkeley community and to ensure compliance with legal obligations relating to the rental of housing. This legislation is designed to address the City of Berkeley's housing crisis, preserve the public peace, health and safety, and advance the housing policies of the City with regard to low and fixed income persons, minorities, students, handicapped, and the aged." App. to Juris. Statement A-111.
To accomplish these goals, the Ordinance places strict rent controls on all real property that "is being rented or is available for rent for residential use in whole or in part," § 5, id., at A-113. Excepted are government-owned units, transient units, cooperatives, hospitals, certain small owner-occupied buildings, and all newly constructed buildings. For the remaining units, numbering approximately 23,000, 37 Cal. 3d 644, 678, 693 P.2d 261, 288 (1984), the Ordinance establishes a base rent ceiling reflecting the rents in effect at the end of May 1980. A landlord may raise his rents from these levels only pursuant to an annual general adjustment of rent ceilings by a Rent Stabilization Board of appointed commissioners or after he is successful in petitioning the Board for an individual adjustment. A landlord who fails to register with the Board units covered by the Ordinance or who fails to adhere *263 to the maximum allowable rent set under the Ordinance may be fined by the Board, sued by his tenants, or have rent legally withheld from him. If his violations are willful, he may face criminal penalties.
Shortly after the passage of the initiative, appellants, a group of landlords owning rental property in Berkeley, brought this suit in California Superior Court, claiming, inter alia, that the Ordinance violates their rights under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, and seeking declaratory and injunctive relief. The Superior Court upheld the Ordinance on its face, but was reversed by the Court of Appeal. While that appeal was pending, however, this Court's decision in Community Communications Co. v. Boulder, 455 U.S. 40 (1982), led certain amici to raise the question whether the Ordinance was unconstitutional because pre-empted by the federal antitrust laws. When the California Supreme Court heard the appeal from the Court of Appeal's decision, it therefore chose to consider plaintiffs' pre-emption claim along with their Fourteenth Amendment challenge.
Although fully briefed on the question whether the Berkeley Ordinance constitutes state action exempt from antitrust scrutiny under the standard established in Boulder, supra, the California Supreme Court noted that consideration of this issue would become necessary only were there to be " `truly a conflict between the Sherman Act and the challenged regulatory scheme,' " 37 Cal. 3d, at 660, 693 P. 2d, at 275 (quoting First American Title Co. v. South Dakota Land Title Assn., 714 F.2d 1439, 1452 (CA8 1983), cert. denied, 464 U.S. 1042 (1984)). Such a conflict would exist, the Supreme Court concluded, only if the Ordinance on its face mandated conduct prohibited by either § 1 or § 2 of the Sherman Act. See Rice v. Norman Williams Co., 458 U.S. 654, 661 (1982). After reviewing the two "traditional standards" that have consistently been used to determine whether conduct violates § 1 of the Sherman Act the per se rules and the rule of reason, see *264 National Society of Professional Engineers v. United States, 435 U.S. 679, 692 (1978) the court concluded that both standards, with their exclusive focus on competition and concern for the selfish motives of private actors, failed to give due deference to a municipality's legitimate interest in promoting public health, safety, and welfare. 37 Cal. 3d, at 667-673, 693 P. 2d, at 280-285. The Supreme Court therefore found both standards inappropriate and proceeded to apply a standard of its own devising, based upon this Court's Commerce Clause cases. Applying this test, the court found no conflict between the Ordinance and either § 1 or § 2 of the Sherman Act.
We noted probable jurisdiction limited to the antitrust pre-emption question, 471 U.S. 1124 (1985), and now affirm, although on grounds different from those relied on by the California Supreme Court. While that court was correct in noting that consideration of state action is not necessary unless an actual conflict with the antitrust laws is established, we find traditional antitrust analysis adequate to resolve the issue presented here.
II
We begin by noting that appellants make no claim under either § 4 or § 16 of the Clayton Act, 15 U.S. C. §§ 15 and 26, that the process by which the Rent Stabilization Ordinance was passed renders the Ordinance the product of an illegal "contract, combination . . . , or conspiracy." Appellants instead claim that, regardless of the manner of its enactment, the regulatory scheme established by the Ordinance, on its face, conflicts with the Sherman Act and therefore is pre-empted.
Recognizing that the function of government may often be to tamper with free markets, correcting their failures and aiding their victims, this Court noted in Rice v. Norman Williams Co., supra, that a "state statute is not pre-empted by the federal antitrust laws simply because the state scheme may have an anticompetitive effect," id., at 659. See Exxon *265 Corp. v. Governor of Maryland, 437 U.S. 117, 133 (1978). We have therefore held that a state statute should be struck down on pre-emption grounds "only if it mandates or authorizes conduct that necessarily constitutes a violation of the antitrust laws in all cases, or if it places irresistible pressure on a private party to violate the antitrust laws in order to comply with the statute." 458 U.S., at 661.
While Rice involved a state statute rather than a municipal ordinance, the rule it established does not distinguish between the two. As in other pre-emption cases, the analysis is the same for the acts of both levels of government. See, e. g., White v. Massachusetts Council of Construction Employers, Inc., 460 U.S. 204 (1983). Only where legislation is found to conflict "irreconcilably" with the antitrust laws, Rice, supra, at 659, does the level of government responsible for its enactment become important. Legislation that would otherwise be pre-empted under Rice may nonetheless survive if it is found to be state action immune from antitrust scrutiny under Parker v. Brown, 317 U.S. 341 (1943). The ultimate source of that immunity can be only the State, not its subdivisions. See Community Communications Co. v. Boulder, supra, at 50-51; Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 412-413 (1978) (opinion of BRENNAN, J.).
A
Appellants argue that Berkeley's Ordinance is pre-empted under Rice because it imposes rent ceilings across the entire rental market for residential units. Such a regime, they contend, clearly falls within the per se rule against price fixing, a rule that has been one of the settled points of antitrust enforcement since the earliest days of the Sherman Act, see Arizona v. Maricopa County Medical Society, 457 U.S. 332, 344-348 (1982); United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 218 (1940). That the prices set here are ceilings rather than floors and that the public interest has been invoked to justify this stabilization should not, appellants *266 argue, save Berkeley's regulatory scheme from condemnation under the per se rule.
Certainly there is this much truth to appellants' argument: Had the owners of residential rental property in Berkeley voluntarily banded together to stabilize rents in the city, their activities would not be saved from antitrust attack by claims that they had set reasonable prices out of solicitude for the welfare of their tenants. See National Society of Professional Engineers v. United States, supra, at 695; United States v. Trans-Missouri Freight Assn., 166 U.S. 290 (1897). Moreover, it cannot be denied that Berkeley's Ordinance will affect the residential housing rental market in much the same way as would the philanthropic activities of this hypothetical trade association. What distinguishes the operation of Berkeley's Ordinance from the activities of a benevolent landlords' cartel is not that the Ordinance will necessarily have a different economic effect, but that the rent ceilings imposed by the Ordinance and maintained by the Rent Stabilization Board have been unilaterally imposed by government upon landlords to the exclusion of private control.
The distinction between unilateral and concerted action is critical here. Adhering to the language of § 1, this Court has always limited the reach of that provision to "unreasonable restraints of trade effected by a `contract, combination . . . , or conspiracy' between separate entities." Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 768 (1984) (emphasis in original). We have therefore deemed it "of considerable importance" that independent activity by a single entity be distinguished from a concerted effort by more than one entity to fix prices or otherwise restrain trade, Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 763 (1984). Even where a single firm's restraints directly affect prices and have the same economic effect as concerted action might have, there can be no liability under § 1 in the absence of agreement. Id., at 760-761; United States v. Parke, Davis *267 & Co., 362 U.S. 29, 44 (1960). Thus, if the Berkeley Ordinance stabilizes rents without this element of concerted action, the program it establishes cannot run afoul of § 1.
Recognizing this concerted-action requirement, appellants argue that the Ordinance "forms a combination between [the city of Berkeley and its officials], on the one hand, and the property owners on the other. It also creates a horizontal combination among the landlords." Reply Brief for Appellants 10, n. 7. In so arguing, appellants misconstrue the concerted-action requirement of § 1. A restraint imposed unilaterally by government does not become concerted action within the meaning of the statute simply because it has a coercive effect upon parties who must obey the law. The ordinary relationship between the government and those who must obey its regulatory commands whether they wish to or not is not enough to establish a conspiracy. Similarly, the mere fact that all competing property owners must comply with the same provisions of the Ordinance is not enough to establish a conspiracy among landlords. Under Berkeley's Ordinance, control over the maximum rent levels of every affected residential unit has been unilaterally removed from the owners of those properties and given to the Rent Stabilization Board. While the Board may choose to respond to an individual landlord's petition for a special adjustment of a particular rent ceiling, it may decide not to. There is no meeting of the minds here. See American Tobacco Co. v. United States, 328 U.S. 781, 810 (1946), quoted in Monsanto, supra, at 764. The owners of residential property in Berkeley have no more freedom to resist the city's rent controls than they do to violate any other local ordinance enforced by substantial sanctions.
B
Not all restraints imposed upon private actors by government units necessarily constitute unilateral action outside the purview of § 1. Certain restraints may be characterized as *268 "hybrid," in that nonmarket mechanisms merely enforce private marketing decisions. See Rice v. Norman Williams Co., 458 U. S., at 665 (STEVENS, J., concurring in judgment). Where private actors are thus granted "a degree of private regulatory power," id., at 666, n. 1, the regulatory scheme may be attacked under § 1. Indeed, this Court has twice found such hybrid restraints to violate the Sherman Act. See Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384 (1951); California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U.S. 97 (1980).
In Schwegmann, a Louisiana statute authorized a distributor to enforce agreements fixing minimum retail prices not only against parties to such contracts, but also against retailers who sold the distributor's products without having agreed to the price restrictions. After finding that the statute went far beyond the now-repealed Miller-Tydings Act, which offered a limited antitrust exemption to certain " `contracts or agreements prescribing minimum prices for the resale' " of specified commodities, the Court held that two liquor distributors had violated § 1 when they attempted to hold a retailer to the price-fixing terms of a contract it had refused to sign. In so holding, the Court noted that "when a state compels retailers to follow a parallel price policy, it demands private conduct which the Sherman Act forbids." 341 U. S, at 389. However, under the Louisiana statute, both the selection of minimum price levels and the exclusive power to enforce those levels were left to the discretion of distributors. While the petitioner-retailer in that case may have been legally required to adhere to the levels so selected, the involvement of his suppliers in setting those prices made it impossible to characterize the regulation as unilateral action by the State of Louisiana.
The trade restraint condemned in Midcal entailed a similar degree of free participation by private economic actors. That case presented an antitrust challenge to California's requirement that all wine producers, wholesalers, and rectifiers *269 file fair trade contracts or price schedules with the State. If a wine producer did not set prices, wholesalers had to post a resale price schedule for that producer's brands. No state-licensed wine merchant could sell wine to a retailer at other than those prices. 445 U.S., at 99. The Court found: "California's system for wine pricing plainly constitutes resale price maintainance in violation of the Sherman Act . . . . The wine producer holds the power to prevent price competition by dictating the prices charged by wholesalers." Id., at 103. Here again, the mere existence of legal compulsion did not turn California's scheme into unilateral action by the State. The Court noted: "The State has no direct control over wine prices, and it does not review the reasonableness of the prices set by wine dealers." Id., at 100.
The hybrid restraints condemned in Schwegmann and Midcal were thus quite different from the pure regulatory scheme imposed by Berkeley's Ordinance. While the Ordinance does give tenants certainly a group of interested private parties some power to trigger the enforcement of its provisions, it places complete control over maximum rent levels exclusively in the hands of the Rent Stabilization Board. Not just the controls themselves but also the rent ceilings they mandate have been unilaterally imposed on the landlords by the city.
C
There may be cases in which what appears to be a state- or municipality-administered price stabilization scheme is really a private price-fixing conspiracy, concealed under a "gauzy cloak of state involvement," Midcal, supra, at 106. This might occur even where prices are ostensibly under the absolute control of government officials. However, we have been given no indication that such corruption has tainted the rent controls imposed by Berkeley's Ordinance. Adopted by popular initiative, the Ordinance can hardly be viewed as a cloak for any conspiracy among landlords or between the landlords and the municipality. Berkeley's landlords have *270 simply been deprived of the power freely to raise their rents. That is why they are here. And that is why their role in the stabilization program does not alter the restraint's unilateral nature.[2]
III
Because under settled principles of antitrust law, the rent controls established by Berkeley's Ordinance lack the element of concerted action needed before they can be characterized as a per se violation of § 1 of the Sherman Act, we cannot say that the Ordinance is facially inconsistent with the federal antitrust laws. See Rice v. Norman Williams Co., supra, at 661. We therefore need not address whether, even if the controls were to mandate § 1 violations, they would be exempt under the state-action doctrine from antitrust scrutiny. See Hallie v. Eau Claire, 471 U.S. 34 (1985).
The judgment of the California Supreme Court is Affirmed.
JUSTICE POWELL, concurring in the judgment. | The question presented here is whether a rent control ordinance enacted by a municipality pursuant to popular initiative is unconstitutional because pre-empted by the Sherman Act. I In June 1980, the electorate of the city of Berkeley, California, enacted an initiative entitled "Ordinance 5261-N. S., Rent Stabilization and Eviction for Good Cause Ordinance" *262 (hereafter Ordinance). Section 3 of the Ordinance stated the measure's purposes:[1] "The purposes of this Ordinance are to regulate residential rent increases in the City of Berkeley and to protect tenants from unwarranted rent increases and arbitrary, discriminatory, or retaliatory evictions, in order to help maintain the diversity of the Berkeley community and to ensure compliance with legal obligations relating to the rental of housing. This legislation is designed to address the City of Berkeley's housing crisis, preserve the public peace, health and safety, and advance the housing policies of the City with regard to low and fixed income persons, minorities, students, handicapped, and the aged." App. to Juris. Statement A-111. To accomplish these goals, the Ordinance places strict rent controls on all real property that "is being rented or is available for rent for residential use in whole or in part," 5, at A-113. Excepted are government-owned units, transient units, cooperatives, hospitals, certain small owner-occupied buildings, and all newly constructed buildings. For the remaining units, numbering approximately 23,000, the Ordinance establishes a base rent ceiling reflecting the rents in effect at the end of May 1980. A landlord may raise his rents from these levels only pursuant to an annual general adjustment of rent ceilings by a Rent Stabilization Board of appointed commissioners or after he is successful in petitioning the Board for an individual adjustment. A landlord who fails to register with the Board units covered by the Ordinance or who fails to adhere *263 to the maximum allowable rent set under the Ordinance may be fined by the Board, sued by his tenants, or have rent legally withheld from him. If his violations are willful, he may face criminal penalties. Shortly after the passage of the initiative, appellants, a group of landlords owning rental property in Berkeley, brought this suit in California Superior Court, claiming, inter alia, that the Ordinance violates their rights under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, and seeking declaratory and injunctive relief. The Superior Court upheld the Ordinance on its face, but was reversed by the Court of Appeal. While that appeal was pending, however, this Court's decision in Community Communications led certain amici to raise the question whether the Ordinance was unconstitutional because pre-empted by the federal antitrust laws. When the California Supreme Court heard the appeal from the Court of Appeal's decision, it therefore chose to consider plaintiffs' pre-emption claim along with their Fourteenth Amendment challenge. Although fully briefed on the question whether the Berkeley Ordinance constitutes state action exempt from antitrust scrutiny under the standard established in the California Supreme Court noted that consideration of this issue would become necessary only were there to be " `truly a conflict between the Sherman Act and the challenged regulatory scheme,' " 693 P. 2d, at 275 cert. denied, ). Such a conflict would exist, the Supreme Court concluded, only if the Ordinance on its face mandated conduct prohibited by either 1 or 2 of the Sherman Act. See After reviewing the two "traditional standards" that have consistently been used to determine whether conduct violates 1 of the Sherman Act the per se rules and the rule of reason, see *264 National Society of Professional the court concluded that both standards, with their exclusive focus on competition and concern for the selfish motives of private actors, failed to give due deference to a municipality's legitimate interest in promoting public health, safety, and -673, 693 P. 2d, at 280-285. The Supreme Court therefore found both standards inappropriate and proceeded to apply a standard of its own devising, based upon this Court's Commerce Clause cases. Applying this test, the court found no conflict between the Ordinance and either 1 or 2 of the Sherman Act. We noted probable jurisdiction limited to the antitrust pre-emption question, and now affirm, although on grounds different from those relied on by the California Supreme Court. While that court was correct in noting that consideration of state action is not necessary unless an actual conflict with the antitrust laws is established, we find traditional antitrust analysis adequate to resolve the issue presented here. II We begin by noting that appellants make no claim under either 4 or 16 of the Clayton Act, 15 U.S. C. 15 and 26, that the process by which the Rent Stabilization Ordinance was passed renders the Ordinance the product of an illegal "contract, combination or conspiracy." Appellants instead claim that, regardless of the manner of its enactment, the regulatory scheme established by the Ordinance, on its face, conflicts with the Sherman Act and therefore is pre-empted. Recognizing that the function of government may often be to tamper with free markets, correcting their failures and aiding their victims, this Court noted in that a "state statute is not pre-empted by the federal antitrust laws simply because the state scheme may have an anticompetitive effect," See Exxon *265 We have therefore held that a state statute should be struck down on pre-emption grounds "only if it mandates or authorizes conduct that necessarily constitutes a violation of the antitrust laws in all cases, or if it places irresistible pressure on a private party to violate the antitrust laws in order to comply with the statute." 458 U.S., at While involved a state statute rather than a municipal ordinance, the rule it established does not distinguish between the two. As in other pre-emption cases, the analysis is the same for the acts of both levels of government. See, e. g., Only where legislation is found to conflict "irreconcilably" with the antitrust laws, does the level of government responsible for its enactment become important. Legislation that would otherwise be pre-empted under may nonetheless survive if it is found to be state action immune from antitrust scrutiny under The ultimate source of that immunity can be only the State, not its subdivisions. See Community Communications ; Lafayette v. Louisiana Power & Light A Appellants argue that Berkeley's Ordinance is pre-empted under because it imposes rent ceilings across the entire rental market for residential units. Such a regime, they contend, clearly falls within the per se rule against price fixing, a rule that has been one of the settled points of antitrust enforcement since the earliest days of the Sherman Act, see ; United v. Socony-Vacuum Oil That the prices set here are ceilings rather than floors and that the public interest has been invoked to justify this stabilization should not, appellants *266 argue, save Berkeley's regulatory scheme from condemnation under the per se rule. Certainly there is this much truth to appellants' argument: Had the owners of residential rental property in Berkeley voluntarily banded together to stabilize rents in the city, their activities would not be saved from antitrust attack by claims that they had set reasonable prices out of solicitude for the welfare of their tenants. See National Society of Professional ; United v. Trans-Missouri Freight Assn., Moreover, it cannot be denied that Berkeley's Ordinance will affect the residential housing rental market in much the same way as would the philanthropic activities of this hypothetical trade association. What distinguishes the operation of Berkeley's Ordinance from the activities of a benevolent landlords' cartel is not that the Ordinance will necessarily have a different economic effect, but that the rent ceilings imposed by the Ordinance and maintained by the Rent Stabilization Board have been unilaterally imposed by government upon landlords to the exclusion of private control. The distinction between unilateral and concerted action is critical here. Adhering to the language of 1, this Court has always limited the reach of that provision to "unreasonable restraints of trade effected by a `contract, combination or conspiracy' between separate entities." Copperweld We have therefore deemed it "of considerable importance" that independent activity by a single entity be distinguished from a concerted effort by more than one entity to fix prices or otherwise restrain trade, v. Spray-Rite Service Corp., Even where a single firm's restraints directly affect prices and have the same economic effect as concerted action might have, there can be no liability under 1 in the absence of agreement. ; United v. Parke, Davis *267 & Thus, if the Berkeley Ordinance stabilizes rents without this element of concerted action, the program it establishes cannot run afoul of 1. Recognizing this concerted-action requirement, appellants argue that the Ordinance "forms a combination between [the city of Berkeley and its officials], on the one hand, and the property owners on the other. It also creates a horizontal combination among the landlords." Reply Brief for Appellants 10, n. 7. In so arguing, appellants misconstrue the concerted-action requirement of 1. A restraint imposed unilaterally by government does not become concerted action within the meaning of the statute simply because it has a coercive effect upon parties who must obey the law. The ordinary relationship between the government and those who must obey its regulatory commands whether they wish to or not is not enough to establish a conspiracy. Similarly, the mere fact that all competing property owners must comply with the same provisions of the Ordinance is not enough to establish a conspiracy among landlords. Under Berkeley's Ordinance, control over the maximum rent levels of every affected residential unit has been unilaterally removed from the owners of those properties and given to the Rent Stabilization Board. While the Board may choose to respond to an individual landlord's petition for a special adjustment of a particular rent ceiling, it may decide not to. There is no meeting of the minds here. See American Tobacco v. United quoted in The owners of residential property in Berkeley have no more freedom to resist the city's rent controls than they do to violate any other local ordinance enforced by substantial sanctions. B Not all restraints imposed upon private actors by government units necessarily constitute unilateral action outside the purview of 1. Certain restraints may be characterized as *268 "hybrid," in that nonmarket mechanisms merely enforce private marketing decisions. See Where private actors are thus granted "a degree of private regulatory power," the regulatory scheme may be attacked under 1. Indeed, this Court has twice found such hybrid restraints to violate the Sherman Act. See Schwegmann ; California Retail Liquor Dealers 5 U.S. 97 In Schwegmann, a Louisiana statute authorized a distributor to enforce agreements fixing minimum retail prices not only against parties to such contracts, but also against retailers who sold the distributor's products without having agreed to the price restrictions. After finding that the statute went far beyond the now-repealed Miller-Tydings Act, which offered a limited antitrust exemption to certain " `contracts or agreements prescribing minimum prices for the resale' " of specified commodities, the Court held that two liquor distributors had violated 1 when they attempted to hold a retailer to the price-fixing terms of a contract it had refused to sign. In so holding, the Court noted that "when a state compels retailers to follow a parallel price policy, it demands private conduct which the Sherman Act forbids." 341 U. S, at 389. However, under the Louisiana statute, both the selection of minimum price levels and the exclusive power to enforce those levels were left to the discretion of distributors. While the petitioner-retailer in that case may have been legally required to adhere to the levels so selected, the involvement of his suppliers in setting those prices made it impossible to characterize the regulation as unilateral action by the State of Louisiana. The trade restraint condemned in entailed a similar degree of free participation by private economic actors. That case presented an antitrust challenge to California's requirement that all wine producers, wholesalers, and rectifiers *269 file fair trade contracts or price schedules with the State. If a wine producer did not set prices, wholesalers had to post a resale price schedule for that producer's brands. No state-licensed wine merchant could sell wine to a retailer at other than those 5 U.S., at 99. The Court found: "California's system for wine pricing plainly constitutes resale price maintainance in violation of the Sherman Act The wine producer holds the power to prevent price competition by dictating the prices charged by wholesalers." Here again, the mere existence of legal compulsion did not turn California's scheme into unilateral action by the State. The Court noted: "The State has no direct control over wine prices, and it does not review the reasonableness of the prices set by wine dealers." The hybrid restraints condemned in Schwegmann and were thus quite different from the pure regulatory scheme imposed by Berkeley's Ordinance. While the Ordinance does give tenants certainly a group of interested private parties some power to trigger the enforcement of its provisions, it places complete control over maximum rent levels exclusively in the hands of the Rent Stabilization Board. Not just the controls themselves but also the rent ceilings they mandate have been unilaterally imposed on the landlords by the city. C There may be cases in which what appears to be a state- or municipality-administered price stabilization scheme is really a private price-fixing conspiracy, concealed under a "gauzy cloak of state involvement," This might occur even where prices are ostensibly under the absolute control of government officials. However, we have been given no indication that such corruption has tainted the rent controls imposed by Berkeley's Ordinance. Adopted by popular initiative, the Ordinance can hardly be viewed as a cloak for any conspiracy among landlords or between the landlords and the municipality. Berkeley's landlords have *270 simply been deprived of the power freely to raise their rents. That is why they are here. And that is why their role in the stabilization program does not alter the restraint's unilateral nature.[2] III Because under settled principles of antitrust law, the rent controls established by Berkeley's Ordinance lack the element of concerted action needed before they can be characterized as a per se violation of 1 of the Sherman Act, we cannot say that the Ordinance is facially inconsistent with the federal antitrust laws. See at We therefore need not address whether, even if the controls were to mandate 1 violations, they would be exempt under the state-action doctrine from antitrust scrutiny. See The judgment of the California Supreme Court is Affirmed. JUSTICE POWELL, concurring in the judgment. |
Justice Scalia | dissenting | false | Montgomery v. Louisiana | 2016-01-25T00:00:00 | null | https://www.courtlistener.com/opinion/3171724/montgomery-v-louisiana/ | https://www.courtlistener.com/api/rest/v3/clusters/3171724/ | 2,016 | null | null | null | null | The Court has no jurisdiction to decide this case, and
the decision it arrives at is wrong. I respectfully dissent.
I. Jurisdiction
Louisiana postconviction courts willingly entertain
Eighth Amendment claims but, with limited exceptions,
apply the law as it existed when the state prisoner was
convicted and sentenced. Shortly after this Court an-
nounced Teague v. Lane, 489 U.S. 288 (1989), the Louisi-
ana Supreme Court adopted Teague’s framework to govern
the provision of postconviction remedies available to state
prisoners in its state courts as a matter of state law. Tay-
lor v. Whitley, 606 So. 2d 1292 (1992). In doing so, the
court stated that it was “not bound” to adopt that federal
framework. Id., at 1296. One would think, then, that it is
none of our business that a 69-year-old Louisiana prison-
er’s state-law motion to be resentenced according to Miller
v. Alabama, 567 U. S. ___ (2012), a case announced almost
half a century after his sentence was final, was met with a
firm rejection on state-law grounds by the Louisiana
Supreme Court. But a majority of this Court, eager to
reach the merits of this case, resolves the question of our
jurisdiction by deciding that the Constitution requires
state postconviction courts to adopt Teague’s exception for
2 MONTGOMERY v. LOUISIANA
SCALIA, J., dissenting
so-called “substantive” new rules and to provide state-law
remedies for the violations of those rules to prisoners
whose sentences long ago became final. This conscription
into federal service of state postconviction courts is noth-
ing short of astonishing.
A
Teague announced that federal courts could not grant
habeas corpus to overturn state convictions on the basis of
a “new rule” of constitutional law—meaning one an-
nounced after the convictions became final—unless that
new rule was a “substantive rule” or a “watershed rul[e] of
criminal procedure.” 489 U.S., at 311. The Teague pre-
scription followed from Justice Harlan’s view of the “retro-
activity problem” detailed in his separate opinion in Desist
v. United States, 394 U.S. 244, 256 (1969) (dissenting
opinion), and later in Mackey v. United States, 401 U.S.
667, 675 (1971) (opinion concurring in judgment in part
and dissenting in part). Placing the rule’s first exception
in context requires more analysis than the majority has
applied.
The Court in the mid-20th century was confounded by
what Justice Harlan called the “swift pace of constitu-
tional change,” Pickelsimer v. Wainwright, 375 U.S. 2, 4
(1963) (dissenting opinion), as it vacated and remanded
many cases in the wake of Gideon v. Wainwright, 372
U.S. 335 (1963). Justice Harlan called upon the Court to
engage in “informed and deliberate consideration” of
“whether the States are constitutionally required to apply
[Gideon’s] new rule retrospectively, which may well re-
quire the reopening of cases long since finally adjudicated
in accordance with then applicable decisions of this
Court.” Pickelsimer, supra, at 3. The Court answered
that call in Linkletter v. Walker, 381 U.S. 618 (1965).
Linkletter began with the premise “that we are neither
required to apply, nor prohibited from applying, a decision
Cite as: 577 U. S. ____ (2016) 3
SCALIA, J., dissenting
retrospectively” and went on to adopt an equitable rule-by-
rule approach to retroactivity, considering “the prior his-
tory of the rule in question, its purpose and effect, and
whether retrospective operation will further or retard its
operation.” Id., at 629.
The Linkletter framework proved unworkable when the
Court began applying the rule-by-rule approach not only
to cases on collateral review but also to cases on direct
review, rejecting any distinction “between convictions now
final” and “convictions at various stages of trial and direct
review.” Stovall v. Denno, 388 U.S. 293, 300 (1967). It
was this rejection that drew Justice Harlan’s reproach in
Desist and later in Mackey. He urged that “all ‘new’ rules
of constitutional law must, at a minimum, be applied to all
those cases which are still subject to direct review by this
Court at the time the ‘new’ decision is handed down.”
Desist, supra, at 258 (dissenting opinion). “Simply fishing
one case from the stream of appellate review, using it as a
vehicle for pronouncing new constitutional standards, and
then permitting a stream of similar cases subsequently to
flow by unaffected by that new rule constitute an indefen-
sible departure from th[e] model of judicial review.”
Mackey, supra, at 679.
The decision in Griffith v. Kentucky, 479 U.S. 314
(1987), heeded this constitutional concern. The Court
jettisoned the Linkletter test for cases pending on direct
review and adopted for them Justice Harlan’s rule of
redressability: “[F]ailure to apply a newly declared consti-
tutional rule to criminal cases pending on direct review
violates basic norms of constitutional adjudication.” 479
U.S., at 322 (emphasis added). We established in Griffith
that this Court must play by our own “old rules”—rules we
have settled before the defendant’s conviction and sen-
tence become final, even those that are a “clear break from
existing precedent”—for cases pending before us on direct
appeal. Id., at 323. Since the Griffith rule is constitution-
4 MONTGOMERY v. LOUISIANA
SCALIA, J., dissenting
ally compelled, we instructed the lower state and federal
courts to comply with it as well. Ibid.
When Teague followed on Griffith’s heels two years
later, the opinion contained no discussion of “basic norms
of constitutional adjudication,” Griffith, supra, at 322, nor
any discussion of the obligations of state courts. Doing
away with Linkletter for good, the Court adopted Justice
Harlan’s solution to “the retroactivity problem” for cases
pending on collateral review—which he described not as a
constitutional problem but as “a problem as to the scope of
the habeas writ.” Mackey, supra, at 684 (emphasis added).
Teague held that federal habeas courts could no longer
upset state-court convictions for violations of so-called
“new rules,” not yet announced when the conviction be-
came final. 489 U.S., at 310. But it allowed for the previ-
ously mentioned exceptions to this rule of nonredressabil-
ity: substantive rules placing “certain kinds of primary,
private individual conduct beyond the power of the crimi-
nal law-making authority to proscribe” and “watershed
rules of criminal procedure.” Id., at 311. Then in Penry v.
Lynaugh, 492 U.S. 302 (1989), the Court expanded this
first exception for substantive rules to embrace new rules
“prohibiting a certain category of punishment for a class of
defendants because of their status or offense.” Id., at 330.
Neither Teague nor its exceptions are constitutionally
compelled. Unlike today’s majority, the Teague-era Court
understood that cases on collateral review are fundamen-
tally different from those pending on direct review because
of “considerations of finality in the judicial process.” Shea
v. Louisiana, 470 U.S. 51, 59–60 (1985). That line of
finality demarcating the constitutionally required rule in
Griffith from the habeas rule in Teague supplies the an-
swer to the not-so-difficult question whether a state post-
conviction court must remedy the violation of a new sub-
stantive rule: No. A state court need only apply the law as
it existed at the time a defendant’s conviction and sen-
Cite as: 577 U. S. ____ (2016) 5
SCALIA, J., dissenting
tence became final. See Griffith, supra, at 322. And once
final, “a new rule cannot reopen a door already closed.”
James B. Beam Distilling Co. v. Georgia, 501 U.S. 529,
541 (1991) (opinion of Souter, J.). Any relief a prisoner
might receive in a state court after finality is a matter of
grace, not constitutional prescription.
B
The majority can marshal no case support for its con-
trary position. It creates a constitutional rule where none
had been before: “Teague’s conclusion establishing the
retroactivity of new substantive rules is best understood
as resting upon constitutional premises” binding in both
federal and state courts. Ante, at 8. “Best understood.”
Because of what? Surely not because of its history and
derivation.
Because of the Supremacy Clause, says the majority.
Ante, at 12. But the Supremacy Clause cannot possibly
answer the question before us here. It only elicits another
question: What federal law is supreme? Old or new? The
majority’s champion, Justice Harlan, said the old rules
apply for federal habeas review of a state-court conviction:
“[T]he habeas court need only apply the constitutional
standards that prevailed at the time the original proceed-
ings took place,” Desist, 394 U.S., at 263 (dissenting opin-
ion), for a state court cannot “toe the constitutional mark”
that does not yet exist, Mackey, 401 U.S., at 687 (opinion
of Harlan, J.). Following his analysis, we have clarified
time and again—recently in Greene v. Fisher, 565 U. S.
___, ___–___ (2011) (slip op., at 4–5)—that federal habeas
courts are to review state-court decisions against the law
and factual record that existed at the time the decisions
were made. “Section 2254(d)(1) [of the federal habeas
statute] refers, in the past tense, to a state-court adjudica-
tion that ‘resulted in’ a decision that was contrary to, or
‘involved’ an unreasonable application of, established law.
6 MONTGOMERY v. LOUISIANA
SCALIA, J., dissenting
This backward-looking language requires an examination
of the state-court decision at the time it was made.” Cul-
len v. Pinholster, 563 U.S. 170, 181–182 (2011). How can
it possibly be, then, that the Constitution requires a state
court’s review of its own convictions to be governed by
“new rules” rather than (what suffices when federal courts
review state courts) “old rules”?
The majority relies on the statement in United States v.
United States Coin & Currency, 401 U.S. 715 (1971), that
“ ‘[n]o circumstances call more for the invocation of a rule
of complete retroactivity’ ” than when “ ‘the conduct being
penalized is constitutionally immune from punishment.’ ”
Ante, at 9–10 (quoting 401 U.S., at 724). The majority
neglects to mention that this statement was addressing
the “circumstances” of a conviction that “had not become
final,” id., at 724, n. 13 (emphasis added), when the “rule
of complete retroactivity” was invoked. Coin & Currency,
an opinion written by (guess whom?) Justice Harlan,
merely foreshadowed the rule announced in Griffith, that
all cases pending on direct review receive the benefit of
newly announced rules—better termed “old rules” for such
rules were announced before finality.
The majority also misappropriates Yates v. Aiken, 484
U.S. 211 (1988), which reviewed a state habeas petition-
er’s Fourteenth Amendment claim that the jury instruc-
tions at his trial lessened the State’s burden to prove every
element of his offense beyond a reasonable doubt. That
case at least did involve a conviction that was final. But
the majority is oblivious to the critical fact that Yates’s
claim depended upon an old rule, settled at the time of his
trial. Id., at 217. This Court reversed the state habeas
court for its refusal to consider that the jury instructions
violated that old rule. Ibid. The majority places great
weight upon the dictum in Yates that the South Carolina
habeas court “ ‘ha[d] a duty to grant the relief that federal
law requires.’ ” Ante, at 13 (quoting Yates, supra, at 218).
Cite as: 577 U. S. ____ (2016) 7
SCALIA, J., dissenting
It is simply wrong to divorce that dictum from the facts it
addressed. In that context, Yates merely reinforces the
line drawn by Griffith: when state courts provide a forum
for postconviction relief, they need to play by the “old
rules” announced before the date on which a defendant’s
conviction and sentence became final.
The other sleight of hand performed by the majority is
its emphasis on Ex parte Siebold, 100 U.S. 371 (1880).
That case considered a petition for a federal writ of habeas
corpus following a federal conviction, and the initial issue
it confronted was its jurisdiction. A federal court has no
inherent habeas corpus power, Ex parte Bollman, 4
Cranch 75, 94 (1807), but only that which is conferred
(and limited) by statute, see, e.g., Felker v. Turpin, 518
U.S. 651, 664 (1996). As Siebold stated, it was forbidden
to use the federal habeas writ “as a mere writ of error.”
100 U.S., at 375. “The only ground on which this court, or
any court, without some special statute authorizing it,
[could] give relief on habeas corpus to a prisoner under
conviction and sentence of another court is the want of
jurisdiction in such court over the person or the cause, or
some other matter rendering its proceedings void.” Ibid.
Turning to the facts before it, the Court decided it was
within its power to hear Siebold’s claim, which did not
merely protest that the conviction and sentence were
“erroneous” but contended that the statute he was con-
victed of violating was unconstitutional and the conviction
therefore void: “[I]f the laws are unconstitutional and void,
the Circuit Court acquired no jurisdiction of the causes.”
Id., at 376–377. Siebold is thus a decision that expands
the limits of this Court’s power to issue a federal habeas
writ for a federal prisoner.
The majority, however, divines from Siebold “a general
principle” that “a court has no authority to leave in place a
conviction or sentence that violates a substantive rule,
regardless of whether the conviction or sentence became
8 MONTGOMERY v. LOUISIANA
SCALIA, J., dissenting
final before the rule was announced.” Ante, at 11. That is
utterly impossible. No “general principle” can rationally
be derived from Siebold about constitutionally required
remedies in state courts; indeed, the opinion does not even
speak to constitutionally required remedies in federal
courts. It is a decision about this Court’s statutory power
to grant the Original Writ, not about its constitutional
obligation to do so. Nowhere in Siebold did this Court
intimate that relief was constitutionally required—or as
the majority puts it, that a court would have had “no
authority” to leave in place Siebold’s conviction, ante, at
11.
The majority’s sorry acknowledgment that “Siebold and
the other cases discussed in this opinion, of course, do not
directly control the question the Court now answers for
the first time,” ibid., is not nearly enough of a disclaimer.
It is not just that they “do not directly control,” but that
the dicta cherry picked from those cases are irrelevant;
they addressed circumstances fundamentally different
from those to which the majority now applies them. In-
deed, we know for sure that the author of some of those
dicta, Justice Harlan, held views that flatly contradict the
majority.
The majority’s maxim that “state collateral review
courts have no greater power than federal habeas courts to
mandate that a prisoner continue to suffer punishment
barred by the Constitution,” ante, at 12–13, begs the ques-
tion rather than contributes to its solution. Until today,
no federal court was constitutionally obliged to grant relief
for the past violation of a newly announced substantive
rule. Until today, it was Congress’s prerogative to do
away with Teague’s exceptions altogether. Indeed, we had
left unresolved the question whether Congress had al-
ready done that when it amended a section of the habeas
corpus statute to add backward-looking language govern-
ing the review of state-court decisions. See Antiterrorism
Cite as: 577 U. S. ____ (2016) 9
SCALIA, J., dissenting
and Effective Death Penalty Act of 1996, §104, 110 Stat.
1219, codified at 28 U.S. C. §2254(d)(1); Greene, 565 U. S,
at ___, n. (slip op., at 5, n.). A maxim shown to be more
relevant to this case, by the analysis that the majority
omitted, is this: The Supremacy Clause does not impose
upon state courts a constitutional obligation it fails to
impose upon federal courts.
C
All that remains to support the majority’s conclusion is
that all-purpose Latin canon: ipse dixit. The majority
opines that because a substantive rule eliminates a State’s
power to proscribe certain conduct or impose a certain
punishment, it has “the automatic consequence of invali-
dating a defendant’s conviction or sentence.” Ante, at 9.
What provision of the Constitution could conceivably
produce such a result? The Due Process Clause? It surely
cannot be a denial of due process for a court to pronounce
a final judgment which, though fully in accord with federal
constitutional law at the time, fails to anticipate a change
to be made by this Court half a century into the future.
The Equal Protection Clause? Both statutory and (in-
creasingly) constitutional laws change. If it were a denial
of equal protection to hold an earlier defendant to a law
more stringent than what exists today, it would also be a
denial of equal protection to hold a later defendant to a
law more stringent than what existed 50 years ago. No
principle of equal protection requires the criminal law of
all ages to be the same.
The majority grandly asserts that “[t]here is no grandfa-
ther clause that permits States to enforce punishments the
Constitution forbids.” Ante, at 12 (emphasis added). Of
course the italicized phrase begs the question. There most
certainly is a grandfather clause—one we have called
finality—which says that the Constitution does not re-
quire States to revise punishments that were lawful when
10 MONTGOMERY v. LOUISIANA
SCALIA, J., dissenting
they were imposed. Once a conviction has become final,
whether new rules or old ones will be applied to revisit the
conviction is a matter entirely within the State’s control;
the Constitution has nothing to say about that choice. The
majority says that there is no “possibility of a valid result”
when a new substantive rule is not applied retroactively.
Ante, at 9. But the whole controversy here arises because
many think there is a valid result when a defendant has
been convicted under the law that existed when his convic-
tion became final. And the States are unquestionably
entitled to take that view of things.
The majority’s imposition of Teague’s first exception
upon the States is all the worse because it does not adhere
to that exception as initially conceived by Justice Harlan—
an exception for rules that “place, as a matter of constitu-
tional interpretation, certain kinds of primary, private
individual conduct beyond the power of the criminal law-
making authority to proscribe.” Mackey, 401 U.S., at 692
(emphasis added). Rather, it endorses the exception as
expanded by Penry, to include “rules prohibiting a certain
category of punishment for a class of defendants because
of their status or offense.” 492 U.S., at 330. That expan-
sion empowered and obligated federal (and after today
state) habeas courts to invoke this Court’s Eighth
Amendment “evolving standards of decency” jurisprudence
to upset punishments that were constitutional when im-
posed but are “cruel and unusual,” U. S. Const., Amdt. 8,
in our newly enlightened society. See Trop v. Dulles, 356
U.S. 86, 101 (1958). The “evolving standards” test con-
cedes that in 1969 the State had the power to punish
Henry Montgomery as it did. Indeed, Montgomery could
at that time have been sentenced to death by our yet
unevolved society. Even 20 years later, this Court reaf-
firmed that the Constitution posed no bar to death sen-
tences for juveniles. Stanford v. Kentucky, 492 U.S. 361
(1989). Not until our People’s “standards of decency”
Cite as: 577 U. S. ____ (2016) 11
SCALIA, J., dissenting
evolved a mere 10 years ago—nearly 40 years after Mont-
gomery’s sentence was imposed—did this Court declare
the death penalty unconstitutional for juveniles. Roper v.
Simmons, 543 U.S. 551 (2005). Even then, the Court
reassured States that “the punishment of life imprison-
ment without the possibility of parole is itself a severe
sanction,” implicitly still available for juveniles. Id., at
572. And again five years ago this Court left in place this
severe sanction for juvenile homicide offenders. Graham
v. Florida, 560 U.S. 48, 69 (2010). So for the five decades
Montgomery has spent in prison, not one of this Court’s
precedents called into question the legality of his sen-
tence—until the People’s “standards of decency,” as per-
ceived by five Justices, “evolved” yet again in Miller.
Teague’s central purpose was to do away with the old
regime’s tendency to “continually force the States to mar-
shal resources in order to keep in prison defendants whose
trials and appeals conformed to then-existing constitu-
tional standards.” 489 U.S., at 310. Today’s holding
thwarts that purpose with a vengeance. Our ever-evolving
Constitution changes the rules of “cruel and unusual
punishments” every few years. In the passage from
Mackey that the majority’s opinion quotes, ante, at 13,
Justice Harlan noted the diminishing force of finality (and
hence the equitable propriety—not the constitutional
requirement—of disregarding it) when the law punishes
nonpunishable conduct, see 401 U.S., at 693. But one
cannot imagine a clearer frustration of the sensible policy
of Teague when the ever-moving target of impermissible
punishments is at issue. Today’s holding not only fore-
closes Congress from eliminating this expansion of Teague
in federal courts, but also foists this distortion upon the
States.
II. The Retroactivity of Miller
Having created jurisdiction by ripping Teague’s first
12 MONTGOMERY v. LOUISIANA
SCALIA, J., dissenting
exception from its moorings, converting an equitable rule
governing federal habeas relief to a constitutional com-
mand governing state courts as well, the majority proceeds
to the merits. And here it confronts a second obstacle to
its desired outcome. Miller, the opinion it wishes to im-
pose upon state postconviction courts, simply does not
decree what the first part of the majority’s opinion says
Teague’s first exception requires to be given retroactive
effect: a rule “set[ting] forth categorical constitutional
guarantees that place certain criminal laws and punish-
ments altogether beyond the State’s power to impose.”
Ante, at 9 (emphasis added). No problem. Having distorted
Teague, the majority simply proceeds to rewrite Miller.
The majority asserts that Miller “rendered life without
parole an unconstitutional penalty for ‘a class of defend-
ants because of their status’—that is, juvenile offenders
whose crimes reflect the transient immaturity of youth.”
Ante, at 17. It insists that Miller barred life-without-
parole sentences “for all but the rarest of juvenile offend-
ers, those whose crimes reflect permanent incorrigibility.
For that reason, Miller is no less substantive than are
Roper and Graham.” Ante, at 17–18. The problem is that
Miller stated, quite clearly, precisely the opposite: “Our
decision does not categorically bar a penalty for a class of
offenders or type of crime—as, for example, we did in
Roper or Graham. Instead, it mandates only that a sen-
tencer follow a certain process—considering an offender’s
youth and attendant characteristics—before imposing a
particular penalty.” 567 U. S., at ___ (slip op., at 20)
(emphasis added).
To contradict that clear statement, the majority opinion
quotes passages from Miller that assert such things as
“mandatory life-without-parole sentences for children
‘pos[e] too great a risk of disproportionate punishment’ ”
and “ ‘appropriate occasions for sentencing juveniles to this
harshest possible penalty will be uncommon.’ ” Ante, at 16
Cite as: 577 U. S. ____ (2016) 13
SCALIA, J., dissenting
(quoting Miller, supra, at ___ (slip op., at 17)). But to say
that a punishment might be inappropriate and dispropor-
tionate for certain juvenile offenders is not to say that it is
unconstitutionally void. All of the statements relied on by
the majority do nothing more than express the reason why
the new, youth-protective procedure prescribed by Miller is
desirable: to deter life sentences for certain juvenile of-
fenders. On the issue of whether Miller rendered life-
without-parole penalties unconstitutional, it is impossible
to get past Miller’s unambiguous statement that “[o]ur
decision does not categorically bar a penalty for a class of
offenders” and “mandates only that a sentencer follow a
certain process . . . before imposing a particular penalty.”
567 U. S., at ___ (slip op., at 20). It is plain as day that the
majority is not applying Miller, but rewriting it.1
And the rewriting has consequences beyond merely
making Miller’s procedural guarantee retroactive. If,
indeed, a State is categorically prohibited from imposing
life without parole on juvenile offenders whose crimes do
not “reflect permanent incorrigibility,” then even when the
procedures that Miller demands are provided the constitu-
tional requirement is not necessarily satisfied. It remains
available for the defendant sentenced to life without pa-
role to argue that his crimes did not in fact “reflect per-
manent incorrigibility.” Or as the majority’s opinion puts
it: “That Miller did not impose a formal factfinding re-
quirement does not leave States free to sentence a child[2]
——————
1 It is amusing that the majority’s initial description of Miller is the
same as our own: “[T]he Court held that a juvenile convicted of a
homicide offense could not be sentenced to life in prison without parole
absent consideration of the juvenile’s special circumstances in light of
the principles and purposes of juvenile sentencing.” Ante, at 1. Only 15
pages later, after softening the reader with 3 pages of obfuscating
analysis, does the majority dare to attribute to Miller that which Miller
explicitly denies.
2 The majority presumably regards any person one day short of voting
age as a “child.”
14 MONTGOMERY v. LOUISIANA
SCALIA, J., dissenting
whose crime reflects transient immaturity to life without
parole. To the contrary, Miller established that this pun-
ishment is disproportionate under the Eighth Amend-
ment.” Ante, at 20.
How wonderful. Federal and (like it or not) state judges
are henceforth to resolve the knotty “legal” question:
whether a 17-year-old who murdered an innocent sheriff ’s
deputy half a century ago was at the time of his trial
“incorrigible.” Under Miller, bear in mind, the inquiry is
whether the inmate was seen to be incorrigible when he
was sentenced—not whether he has proven corrigible and
so can safely be paroled today. What silliness. (And how
impossible in practice, see Brief for National District
Attorneys Assn. et al. as Amici Curiae 9–17.) When in
Lockett v. Ohio, 438 U.S. 586, 608 (1978), the Court im-
posed the thitherto unheard-of requirement that the sen-
tencer in capital cases must consider and weigh all “rele-
vant mitigating factors,” it at least did not impose the
substantive (and hence judicially reviewable) requirement
that the aggravators must outweigh the mitigators; it
would suffice that the sentencer thought so. And, fairly
read, Miller did the same. Not so with the “incorrigibility”
requirement that the Court imposes today to make Miller
retroactive.
But have no fear. The majority does not seriously ex-
pect state and federal collateral-review tribunals to en-
gage in this silliness, probing the evidence of “incorrigibil-
ity” that existed decades ago when defendants were
sentenced. What the majority expects (and intends) to
happen is set forth in the following not-so-subtle invita-
tion: “A State may remedy a Miller violation by permitting
juvenile homicide offenders to be considered for parole,
rather than by resentencing them.” Ante, at 21. Of
course. This whole exercise, this whole distortion of Mil-
ler, is just a devious way of eliminating life without parole
for juvenile offenders. The Court might have done that
Cite as: 577 U. S. ____ (2016) 15
SCALIA, J., dissenting
expressly (as we know, the Court can decree anything),
but that would have been something of an embarrassment.
After all, one of the justifications the Court gave for de-
creeing an end to the death penalty for murders (no mat-
ter how many) committed by a juvenile was that life with-
out parole was a severe enough punishment. See Roper,
543 U.S., at 572. How could the majority—in an opinion
written by the very author of Roper—now say that pun-
ishment is also unconstitutional? The Court expressly
refused to say so in Miller. 567 U. S., at ___ (slip op., at
17). So the Court refuses again today, but merely makes
imposition of that severe sanction a practical impossibil-
ity. And then, in Godfather fashion, the majority makes
state legislatures an offer they can’t refuse: Avoid all the
utterly impossible nonsense we have prescribed by simply
“permitting juvenile homicide offenders to be considered
for parole.” Ante, at 21. Mission accomplished.
Cite as: 577 U. S. ____ (2016) 1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 14–280
_________________
HENRY MONTGOMERY, PETITIONER v. | The Court has no jurisdiction to decide this case, and the decision it arrives at is wrong. I respectfully dissent. I. Jurisdiction Louisiana postconviction courts willingly entertain Eighth Amendment claims but, with limited exceptions, apply the law as it existed when the state prisoner was convicted and sentenced. Shortly after this Court an- nounced the Louisi- ana Supreme Court adopted Teague’s framework to govern the provision of postconviction remedies available to state prisoners in its state courts as a matter of state law. Tay- In doing so, the court stated that it was “not bound” to adopt that federal framework. One would think, then, that it is none of our business that a -year-old Louisiana prison- er’s state-law motion to be resentenced according to v. Alabama, 567 U. S. (2012), a case announced almost half a century after his sentence was final, was met with a firm rejection on state-law grounds by the Louisiana Supreme Court. But a majority of this Court, eager to reach the merits of this case, resolves the question of our jurisdiction by deciding that the Constitution requires state postconviction courts to adopt Teague’s exception for 2 MONTGOMERY v. LOUISIANA SCALIA, J., dissenting so-called “substantive” new rules and to provide state-law remedies for the violations of those rules to prisoners whose sentences long ago became This conscription into federal service of state postconviction courts is noth- ing short of astonishing. A Teague announced that federal courts could not grant habeas corpus to overturn state convictions on the basis of a “new rule” of constitutional law—meaning one an- nounced after the convictions became final—unless that new rule was a “substantive rule” or a “watershed rul[e] of criminal procedure.” The Teague pre- scription followed from Justice Harlan’s view of the “retro- activity problem” detailed in his separate opinion in v. United States, (dissenting opinion), and later in v. United States, 01 U.S. 667, 675 (opinion concurring in judgment in part and dissenting in part). Placing the rule’s first exception in context requires more analysis than the majority has applied. The Court in the mid-20th century was confounded by what Justice Harlan called the “swift pace of constitu- tional change,” (1963) as it vacated and remanded many cases in the wake of Gideon v. Wainwright, 372 U.S. 335 (1963). Justice Harlan called upon the Court to engage in “informed and deliberate consideration” of “whether the States are constitutionally required to apply [Gideon’s] new rule retrospectively, which may well re- quire the reopening of cases long since finally adjudicated in accordance with then applicable decisions of this Court.” The Court answered that call in Linkletter began with the premise “that we are neither required to apply, nor prohibited from applying, a decision Cite as: 577 U. S. (2016) 3 SCALIA, J., dissenting retrospectively” and went on to adopt an equitable rule-by- rule approach to retroactivity, considering “the prior his- tory of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.” The Linkletter framework proved unworkable when the Court began applying the rule-by-rule approach not only to cases on collateral review but also to cases on direct review, rejecting any distinction “between convictions now final” and “convictions at various stages of trial and direct review.” It was this rejection that drew Justice Harlan’s reproach in and later in He urged that “all ‘new’ rules of constitutional law must, at a minimum, be applied to all those cases which are still subject to direct review by this Court at the time the ‘new’ decision is handed down.” “Simply fishing one case from the stream of appellate review, using it as a vehicle for pronouncing new constitutional standards, and then permitting a stream of similar cases subsequently to flow by unaffected by that new rule constitute an indefen- sible departure from th[e] model of judicial review.” The decision in 79 U.S. 31 (1987), heeded this constitutional concern. The Court jettisoned the Linkletter test for cases pending on direct review and adopted for them Justice Harlan’s rule of redressability: “[F]ailure to apply a newly declared consti- tutional rule to criminal cases pending on direct review violates basic norms of constitutional adjudication.” 79 U.S., 22 We established in that this Court must play by our own “old rules”—rules we have settled before the defendant’s conviction and sen- tence become final, even those that are a “clear break from existing precedent”—for cases pending before us on direct appeal. 23. Since the rule is constitution- MONTGOMERY v. LOUISIANA SCALIA, J., dissenting ally compelled, we instructed the lower state and federal courts to comply with it as well. When Teague followed on ’s heels two years later, the opinion contained no discussion of “basic norms of constitutional adjudication,” 22, nor any discussion of the obligations of state courts. Doing away with Linkletter for good, the Court adopted Justice Harlan’s solution to “the retroactivity problem” for cases pending on collateral review—which he described not as a constitutional problem but as “a problem as to the scope of the habeas writ.” at 68 Teague held that federal habeas courts could no longer upset state-court convictions for violations of so-called “new rules,” not yet announced when the conviction be- came 89 U.S., 10. But it allowed for the previ- ously mentioned exceptions to this rule of nonredressabil- ity: substantive rules placing “certain kinds of primary, private individual conduct beyond the power of the crimi- nal law-making authority to proscribe” and “watershed rules of criminal procedure.” 11. Then in Penry v. Lynaugh, 92 U.S. 302 the Court expanded this first exception for substantive rules to embrace new rules “prohibiting a certain category of punishment for a class of defendants because of their status or offense.” 30. Neither Teague nor its exceptions are constitutionally compelled. Unlike today’s majority, the Teague-era Court understood that cases on collateral review are fundamen- tally different from those pending on direct review because of “considerations of finality in the judicial process.” Shea v. Louisiana, 70 U.S. 51, That line of finality demarcating the constitutionally required rule in from the habeas rule in Teague supplies the an- swer to the not-so-difficult question whether a state post- conviction court must remedy the violation of a new sub- stantive rule: No. A state court need only apply the law as it existed at the time a defendant’s conviction and sen- Cite as: 577 U. S. (2016) 5 SCALIA, J., dissenting tence became See 22. And once final, “a new rule cannot reopen a door already closed.” James B. Beam Distilling 51 (1991) (opinion of Souter, J.). Any relief a prisoner might receive in a state court after finality is a matter of grace, not constitutional prescription. B The majority can marshal no case support for its con- trary position. It creates a constitutional rule where none had been before: “Teague’s conclusion establishing the retroactivity of new substantive rules is best understood as resting upon constitutional premises” binding in both federal and state courts. Ante, at 8. “Best understood.” Because of what? Surely not because of its history and derivation. Because of the Supremacy Clause, says the majority. Ante, at 12. But the Supremacy Clause cannot possibly answer the question before us here. It only elicits another question: What federal law is supreme? Old or new? The majority’s champion, Justice Harlan, said the old rules apply for federal habeas review of a state-court conviction: “[T]he habeas court need only apply the constitutional standards that prevailed at the time the original proceed- ings took place,” 39 U.S., at 263 (dissenting opin- ion), for a state court cannot “toe the constitutional mark” that does not yet exist, 01 U.S., at 687 (opinion of Harlan, J.). Following his analysis, we have clarified time and again—recently in Greene v. Fisher, 565 U. S. – (slip op., at –5)—that federal habeas courts are to review state-court decisions against the law and factual record that existed at the time the decisions were made. “Section 225(d)(1) [of the federal habeas statute] refers, in the past tense, to a state-court adjudica- tion that ‘resulted in’ a decision that was contrary to, or ‘involved’ an unreasonable application of, established law. 6 MONTGOMERY v. LOUISIANA SCALIA, J., dissenting This backward-looking language requires an examination of the state-court decision at the time it was made.” Cul- How can it possibly be, then, that the Constitution requires a state court’s review of its own convictions to be governed by “new rules” rather than (what suffices when federal courts review state courts) “old rules”? The majority relies on the statement in United States v. United States Coin & Currency, 01 U.S. 715 that “ ‘[n]o circumstances call more for the invocation of a rule of complete retroactivity’ ” than when “ ‘the conduct being penalized is constitutionally immune from punishment.’ ” Ante, at 9–10 ( 01 U.S., at 72). The majority neglects to mention that this statement was addressing the “circumstances” of a conviction that “had not become final,” at 72, n. 13 when the “rule of complete retroactivity” was invoked. Coin & Currency, an opinion written by (guess whom?) Justice Harlan, merely foreshadowed the rule announced in that all cases pending on direct review receive the benefit of newly announced rules—better termed “old rules” for such rules were announced before finality. The majority also misappropriates v. Aiken, 8 U.S. 211 (1988), which reviewed a state habeas petition- er’s Fourteenth Amendment claim that the jury instruc- tions at his trial lessened the State’s burden to prove every element of his offense beyond a reasonable doubt. That case at least did involve a conviction that was But the majority is oblivious to the critical fact that ’s claim depended upon an old rule, settled at the time of his trial. This Court reversed the state habeas court for its refusal to consider that the jury instructions violated that old rule. The majority places great weight upon the dictum in that the South Carolina habeas court “ ‘ha[d] a duty to grant the relief that federal law requires.’ ” Ante, at 13 ( ). Cite as: 577 U. S. (2016) 7 SCALIA, J., dissenting It is simply wrong to divorce that dictum from the facts it addressed. In that context, merely reinforces the line drawn by : when state courts provide a forum for postconviction relief, they need to play by the “old rules” announced before the date on which a defendant’s conviction and sentence became The other sleight of hand performed by the majority is its emphasis on Ex parte Siebold, That case considered a petition for a federal writ of habeas corpus following a federal conviction, and the initial issue it confronted was its jurisdiction. A federal court has no inherent habeas corpus power, Ex parte Bollman, Cranch 75, 9 (1807), but only that which is conferred (and limited) by statute, see, e.g., Felker v. Turpin, 518 U.S. 651, 66 (1996). As Siebold stated, it was forbidden to use the federal habeas writ “as a mere writ of error.” 100 U.S., 75. “The only ground on which this court, or any court, without some special statute authorizing it, [could] give relief on habeas corpus to a prisoner under conviction and sentence of another court is the want of jurisdiction in such court over the person or the cause, or some other matter rendering its proceedings void.” Turning to the facts before it, the Court decided it was within its power to hear Siebold’s claim, which did not merely protest that the conviction and sentence were “erroneous” but contended that the statute he was con- victed of violating was unconstitutional and the conviction therefore void: “[I]f the laws are unconstitutional and void, the Circuit Court acquired no jurisdiction of the causes.” 76–377. Siebold is thus a decision that expands the limits of this Court’s power to issue a federal habeas writ for a federal prisoner. The majority, however, divines from Siebold “a general principle” that “a court has no authority to leave in place a conviction or sentence that violates a substantive rule, regardless of whether the conviction or sentence became 8 MONTGOMERY v. LOUISIANA SCALIA, J., dissenting final before the rule was announced.” Ante, at 11. That is utterly impossible. No “general principle” can rationally be derived from Siebold about constitutionally required remedies in state courts; indeed, the opinion does not even speak to constitutionally required remedies in federal courts. It is a decision about this Court’s statutory power to grant the Original Writ, not about its constitutional obligation to do so. Nowhere in Siebold did this Court intimate that relief was constitutionally required—or as the majority puts it, that a court would have had “no authority” to leave in place Siebold’s conviction, ante, at 11. The majority’s sorry acknowledgment that “Siebold and the other cases discussed in this opinion, of course, do not directly control the question the Court now answers for the first time,” ib is not nearly enough of a disclaimer. It is not just that they “do not directly control,” but that the dicta cherry picked from those cases are irrelevant; they addressed circumstances fundamentally different from those to which the majority now applies them. In- deed, we know for sure that the author of some of those dicta, Justice Harlan, held views that flatly contradict the majority. The majority’s maxim that “state collateral review courts have no greater power than federal habeas courts to mandate that a prisoner continue to suffer punishment barred by the Constitution,” ante, at 12–13, begs the ques- tion rather than contributes to its solution. Until today, no federal court was constitutionally obliged to grant relief for the past violation of a newly announced substantive rule. Until today, it was Congress’s prerogative to do away with Teague’s exceptions altogether. Indeed, we had left unresolved the question whether Congress had al- ready done that when it amended a section of the habeas corpus statute to add backward-looking language govern- ing the review of state-court decisions. See Antiterrorism Cite as: 577 U. S. (2016) 9 SCALIA, J., dissenting and Effective Death Penalty Act of 1996, §10, 110 Stat. 1219, codified at 28 U.S. C. §225(d)(1); Greene, 565 U. S, at n. (slip op., at 5, n.). A maxim shown to be more relevant to this case, by the analysis that the majority omitted, is this: The Supremacy Clause does not impose upon state courts a constitutional obligation it fails to impose upon federal courts. C All that remains to support the majority’s conclusion is that all-purpose Latin canon: ipse dixit. The majority opines that because a substantive rule eliminates a State’s power to proscribe certain conduct or impose a certain punishment, it has “the automatic consequence of invali- dating a defendant’s conviction or sentence.” Ante, at 9. What provision of the Constitution could conceivably produce such a result? The Due Process Clause? It surely cannot be a denial of due process for a court to pronounce a final judgment which, though fully in accord with federal constitutional law at the time, fails to anticipate a change to be made by this Court half a century into the future. The Equal Protection Clause? Both statutory and (in- creasingly) constitutional laws change. If it were a denial of equal protection to hold an earlier defendant to a law more stringent than what exists today, it would also be a denial of equal protection to hold a later defendant to a law more stringent than what existed 50 years ago. No principle of equal protection requires the criminal law of all ages to be the same. The majority grandly asserts that “[t]here is no grandfa- ther clause that permits States to enforce punishments the Constitution forbids.” Ante, at 12 Of course the italicized phrase begs the question. There most certainly is a grandfather clause—one we have called finality—which says that the Constitution does not re- quire States to revise punishments that were lawful when 10 MONTGOMERY v. LOUISIANA SCALIA, J., dissenting they were imposed. Once a conviction has become final, whether new rules or old ones will be applied to revisit the conviction is a matter entirely within the State’s control; the Constitution has nothing to say about that choice. The majority says that there is no “possibility of a valid result” when a new substantive rule is not applied retroactively. Ante, at 9. But the whole controversy here arises because many think there is a valid result when a defendant has been convicted under the law that existed when his convic- tion became And the States are unquestionably entitled to take that view of things. The majority’s imposition of Teague’s first exception upon the States is all the worse because it does not adhere to that exception as initially conceived by Justice Harlan— an exception for rules that “place, as a matter of constitu- tional interpretation, certain kinds of primary, private individual conduct beyond the power of the criminal law- making authority to proscribe.” 01 U.S., at 2 Rather, it endorses the exception as expanded by Penry, to include “rules prohibiting a certain category of punishment for a class of defendants because of their status or offense.” 92 U.S., 30. That expan- sion empowered and obligated federal (and after today state) habeas courts to invoke this Court’s Eighth Amendment “evolving standards of decency” jurisprudence to upset punishments that were constitutional when im- posed but are “cruel and unusual,” U. S. Const., Amdt. 8, in our newly enlightened society. See Trop v. Dulles, 356 U.S. 86, 101 (1958). The “evolving standards” test con- cedes that in 19 the State had the power to punish Henry Montgomery as it did. Indeed, Montgomery could at that time have been sentenced to death by our yet unevolved society. Even 20 years later, this Court reaf- firmed that the Constitution posed no bar to death sen- tences for juveniles. 92 U.S. 361 Not until our People’s “standards of decency” Cite as: 577 U. S. (2016) 11 SCALIA, J., dissenting evolved a mere 10 years ago—nearly 0 years after Mont- gomery’s sentence was imposed—did this Court declare the death penalty unconstitutional for juveniles. Roper v. Simmons, 53 U.S. 551 Even then, the Court reassured States that “the punishment of life imprison- ment without the possibility of parole is itself a severe sanction,” implicitly still available for juveniles. at 572. And again five years ago this Court left in place this severe sanction for juvenile homicide offenders. Graham v. Florida, 560 U.S. 8, So for the five decades Montgomery has spent in prison, not one of this Court’s precedents called into question the legality of his sen- tence—until the People’s “standards of decency,” as per- ceived by five Justices, “evolved” yet again in Teague’s central purpose was to do away with the old regime’s tendency to “continually force the States to mar- shal resources in order to keep in prison defendants whose trials and appeals conformed to then-existing constitu- tional standards.” 89 U.S., 10. Today’s holding thwarts that purpose with a vengeance. Our ever-evolving Constitution changes the rules of “cruel and unusual punishments” every few years. In the passage from that the majority’s opinion quotes, ante, at 13, Justice Harlan noted the diminishing force of finality (and hence the equitable propriety—not the constitutional requirement—of disregarding it) when the law punishes nonpunishable conduct, see 01 U.S., at 3. But one cannot imagine a clearer frustration of the sensible policy of Teague when the ever-moving target of impermissible punishments is at issue. Today’s holding not only fore- closes Congress from eliminating this expansion of Teague in federal courts, but also foists this distortion upon the States. II. The Retroactivity of Having created jurisdiction by ripping Teague’s first 12 MONTGOMERY v. LOUISIANA SCALIA, J., dissenting exception from its moorings, converting an equitable rule governing federal habeas relief to a constitutional com- mand governing state courts as well, the majority proceeds to the merits. And here it confronts a second obstacle to its desired outcome. the opinion it wishes to im- pose upon state postconviction courts, simply does not decree what the first part of the majority’s opinion says Teague’s first exception requires to be given retroactive effect: a rule “set[ting] forth categorical constitutional guarantees that place certain criminal laws and punish- ments altogether beyond the State’s power to impose.” Ante, at 9 No problem. Having distorted Teague, the majority simply proceeds to rewrite The majority asserts that “rendered life without parole an unconstitutional penalty for ‘a class of defend- ants because of their status’—that is, juvenile offenders whose crimes reflect the transient immaturity of youth.” Ante, at 17. It insists that barred life-without- parole sentences “for all but the rarest of juvenile offend- ers, those whose crimes reflect permanent incorrigibility. For that reason, is no less substantive than are Roper and Graham.” Ante, at 17–18. The problem is that stated, quite clearly, precisely the opposite: “Our decision does not categorically bar a penalty for a class of offenders or type of crime—as, for example, we did in Roper or Graham. Instead, it mandates only that a sen- tencer follow a certain process—considering an offender’s youth and attendant characteristics—before imposing a particular penalty.” 567 U. S., at (slip op., at 20) To contradict that clear statement, the majority opinion quotes passages from that assert such things as “mandatory life-without-parole sentences for children ‘pos[e] too great a risk of disproportionate punishment’ ” and “ ‘appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon.’ ” Ante, at 16 Cite as: 577 U. S. (2016) 13 SCALIA, J., dissenting ( at (slip op., at 17)). But to say that a punishment might be inappropriate and dispropor- tionate for certain juvenile offenders is not to say that it is unconstitutionally void. All of the statements relied on by the majority do nothing more than express the reason why the new, youth-protective procedure prescribed by is desirable: to deter life sentences for certain juvenile of- fenders. On the issue of whether rendered life- without-parole penalties unconstitutional, it is impossible to get past ’s unambiguous statement that “[o]ur decision does not categorically bar a penalty for a class of offenders” and “mandates only that a sentencer follow a certain process before imposing a particular penalty.” 567 U. S., at (slip op., at 20). It is plain as day that the majority is not applying but rewriting it.1 And the rewriting has consequences beyond merely making ’s procedural guarantee retroactive. If, indeed, a State is categorically prohibited from imposing life without parole on juvenile offenders whose crimes do not “reflect permanent incorrigibility,” then even when the procedures that demands are provided the constitu- tional requirement is not necessarily satisfied. It remains available for the defendant sentenced to life without pa- role to argue that his crimes did not in fact “reflect per- manent incorrigibility.” Or as the majority’s opinion puts it: “That did not impose a formal factfinding re- quirement does not leave States free to sentence a child[2] —————— 1 It is amusing that the majority’s initial description of is the same as our own: “[T]he Court held that a juvenile convicted of a homicide offense could not be sentenced to life in prison without parole absent consideration of the juvenile’s special circumstances in light of the principles and purposes of juvenile sentencing.” Ante, at 1. Only 15 pages later, after softening the reader with 3 pages of obfuscating analysis, does the majority dare to attribute to that which explicitly denies. 2 The majority presumably regards any person one day short of voting age as a “child.” 1 MONTGOMERY v. LOUISIANA SCALIA, J., dissenting whose crime reflects transient immaturity to life without parole. To the contrary, established that this pun- ishment is disproportionate under the Eighth Amend- ment.” Ante, at 20. How wonderful. Federal and (like it or not) state judges are henceforth to resolve the knotty “legal” question: whether a 17-year-old who murdered an innocent sheriff ’s deputy half a century ago was at the time of his trial “incorrigible.” Under bear in mind, the inquiry is whether the inmate was seen to be incorrigible when he was sentenced—not whether he has proven corrigible and so can safely be paroled today. What silliness. (And how impossible in practice, see Brief for National District Attorneys Assn. et al. as Amici Curiae 9–17.) When in 38 U.S. 586, the Court im- posed the thitherto unheard-of requirement that the sen- tencer in capital cases must consider and weigh all “rele- vant mitigating factors,” it at least did not impose the substantive (and hence judicially reviewable) requirement that the aggravators must outweigh the mitigators; it would suffice that the sentencer thought so. And, fairly read, did the same. Not so with the “incorrigibility” requirement that the Court imposes today to make retroactive. But have no fear. The majority does not seriously ex- pect state and federal collateral-review tribunals to en- gage in this silliness, probing the evidence of “incorrigibil- ity” that existed decades ago when defendants were sentenced. What the majority expects (and intends) to happen is set forth in the following not-so-subtle invita- tion: “A State may remedy a violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them.” Ante, at 21. Of course. This whole exercise, this whole distortion of Mil- ler, is just a devious way of eliminating life without parole for juvenile offenders. The Court might have done that Cite as: 577 U. S. (2016) 15 SCALIA, J., dissenting expressly (as we know, the Court can decree anything), but that would have been something of an embarrassment. After all, one of the justifications the Court gave for de- creeing an end to the death penalty for murders (no mat- ter how many) committed by a juvenile was that life with- out parole was a severe enough punishment. See Roper, 53 U.S., at 572. How could the majority—in an opinion written by the very author of Roper—now say that pun- ishment is also unconstitutional? The Court expressly refused to say so in 567 U. S., at (slip op., at 17). So the Court refuses again today, but merely makes imposition of that severe sanction a practical impossibil- ity. And then, in Godfather fashion, the majority makes state legislatures an offer they can’t refuse: Avoid all the utterly impossible nonsense we have prescribed by simply “permitting juvenile homicide offenders to be considered for parole.” Ante, at 21. Mission accomplished. Cite as: 577 U. S. (2016) 1 THOMAS, J., dissenting SUPREME COURT OF THE UNITED STATES No. 1–280 HENRY MONTGOMERY, PETITIONER v. |
Justice Blackmun | second_dissenting | false | DeShaney v. Winnebago County Dept. of Social Servs. | 1989-02-22T00:00:00 | null | https://www.courtlistener.com/opinion/112202/deshaney-v-winnebago-county-dept-of-social-servs/ | https://www.courtlistener.com/api/rest/v3/clusters/112202/ | 1,989 | 1988-037 | 1 | 6 | 3 | Today, the Court purports to be the dispassionate oracle of the law, unmoved by "natural sympathy." Ante, at 202. But, in this pretense, the Court itself retreats into a sterile formalism which prevents it from recognizing either the facts of the case before it or the legal norms that should apply to those facts. As JUSTICE BRENNAN demonstrates, the facts here involve not mere passivity, but active state intervention in the life of Joshua DeShaney intervention that triggered a fundamental duty to aid the boy once the State learned of the severe danger to which he was exposed.
The Court fails to recognize this duty because it attempts to draw a sharp and rigid line between action and inaction. But such formalistic reasoning has no place in the interpretation of the broad and stirring Clauses of the Fourteenth Amendment. Indeed, I submit that these Clauses were designed, at least in part, to undo the formalistic legal reasoning that infected antebellum jurisprudence, which the late Professor Robert Cover analyzed so effectively in his significant work entitled Justice Accused (1975).
Like the antebellum judges who denied relief to fugitive slaves, see id., at 119-121, the Court today claims that its decision, however harsh, is compelled by existing legal doctrine. On the contrary, the question presented by this case *213 is an open one, and our Fourteenth Amendment precedents may be read more broadly or narrowly depending upon how one chooses to read them. Faced with the choice, I would adopt a "sympathetic" reading, one which comports with dictates of fundamental justice and recognizes that compassion need not be exiled from the province of judging. Cf. A. Stone, Law, Psychiatry, and Morality 262 (1984) ("We will make mistakes if we go forward, but doing nothing can be the worst mistake. What is required of us is moral ambition. Until our composite sketch becomes a true portrait of humanity we must live with our uncertainty; we will grope, we will struggle, and our compassion may be our only guide and comfort").
Poor Joshua! Victim of repeated attacks by an irresponsible, bullying, cowardly, and intemperate father, and abandoned by respondents who placed him in a dangerous predicament and who knew or learned what was going on, and yet did essentially nothing except, as the Court revealingly observes, ante, at 193, "dutifully recorded these incidents in [their] files." It is a sad commentary upon American life, and constitutional principles so full of late of patriotic fervor and proud proclamations about "liberty and justice for all" that this child, Joshua DeShaney, now is assigned to live out the remainder of his life profoundly retarded. Joshua and his mother, as petitioners here, deserve but now are denied by this Court the opportunity to have the facts of their case considered in the light of the constitutional protection that 42 U.S. C. § 1983 is meant to provide.
| Today, the Court purports to be the dispassionate oracle of the law, unmoved by "natural sympathy." Ante, at 202. But, in this pretense, the Court itself retreats into a sterile formalism which prevents it from recognizing either the facts of the case before it or the legal norms that should apply to those facts. As JUSTICE BRENNAN demonstrates, the facts here involve not mere passivity, but active state intervention in the life of Joshua DeShaney intervention that triggered a fundamental duty to aid the boy once the State learned of the severe danger to which he was exposed. The Court fails to recognize this duty because it attempts to draw a sharp and rigid line between action and inaction. But such formalistic reasoning has no place in the interpretation of the broad and stirring Clauses of the Fourteenth Amendment. Indeed, I submit that these Clauses were designed, at least in part, to undo the formalistic legal reasoning that infected antebellum jurisprudence, which the late Professor Robert Cover analyzed so effectively in his significant work entitled Justice Accused (1975). Like the antebellum judges who denied relief to fugitive slaves, see the Court today claims that its decision, however harsh, is compelled by existing legal doctrine. On the contrary, the question presented by this case *213 is an open one, and our Fourteenth Amendment precedents may be read more broadly or narrowly depending upon how one chooses to read them. Faced with the choice, I would adopt a "sympathetic" reading, one which comports with dictates of fundamental justice and recognizes that compassion need not be exiled from the province of judging. Cf. A. Stone, Law, Psychiatry, and Morality 262 (1984) ("We will make mistakes if we go forward, but doing nothing can be the worst mistake. What is required of us is moral ambition. Until our composite sketch becomes a true portrait of humanity we must live with our uncertainty; we will grope, we will struggle, and our compassion may be our only guide and comfort"). Poor Joshua! Victim of repeated attacks by an irresponsible, bullying, cowardly, and intemperate father, and abandoned by respondents who placed him in a dangerous predicament and who knew or learned what was going on, and yet did essentially nothing except, as the Court revealingly observes, ante, at 193, "dutifully recorded these incidents in [their] files." It is a sad commentary upon American life, and constitutional principles so full of late of patriotic fervor and proud proclamations about "liberty and justice for all" that this child, Joshua DeShaney, now is assigned to live out the remainder of his life profoundly retarded. Joshua and his mother, as petitioners here, deserve but now are denied by this Court the opportunity to have the facts of their case considered in the light of the constitutional protection that 42 U.S. C. 1983 is meant to provide. |
Justice Rehnquist | majority | false | United Parcel Service, Inc. v. Mitchell | 1981-04-20T00:00:00 | null | https://www.courtlistener.com/opinion/110459/united-parcel-service-inc-v-mitchell/ | https://www.courtlistener.com/api/rest/v3/clusters/110459/ | 1,981 | 1980-070 | 1 | 9 | 0 | We are called upon in this case to determine which state statute of limitations period should be borrowed and applied to an employee's action against his employer under § 301 (a) of the Labor Management Relations Act, 1947, 61 Stat. 156, 29 U.S. C. § 185 (a), and Hines v. Anchor Motor Freight, Inc., 424 U.S. 554 (1976).
I
Petitioner United Parcel Service, Inc. (UPS), employed respondent Mitchell (respondent) as a car washer at its facility on Staten Island, N. Y. On January 13, 1977, respondent was discharged for dishonest acts, including falsifying his timecards and claiming payment for hours which he did not work. Respondent denied the charges against him and requested his union, Department Store and Wholesale Drivers, Warehousemen and Helpers, Local Union No. 177 (the Union), to file a grievance on his behalf contesting the discharge. UPS and the Union were parties to a collective-bargaining agreement which provided a grievance and arbitration procedure for the resolution of disputes covered by the agreement. App. 57-67. Pursuant to the agreement respondent's grievance was submitted to a panel of the Atlantic Area Parcel Grievance Committee, composed of three union and three company representatives (the Joint Panel). Cf. Hines v. Anchor Motor Freight, Inc., supra, at 557, n. 2. The Joint Panel conducted a hearing, at which respondent was represented by the Union, and on February 16, 1977, it announced its decision that the discharge be upheld. App. 103-104. Under the collective-bargaining agreement this decision was "binding on all parties." Id., at 66; see id., at 103.
Seventeen months later, on July 20, 1978, respondent filed a complaint in the United States District Court for the Eastern *59 District of New York against the Union and UPS under § 301 (a) of the Labor Management Relations Act, 29 U.S. C. § 185 (a). See Hines v. Anchor Motor Freight, Inc., supra. He alleged that the Union had breached its duty of fair representation and that UPS discharged him not for the stated reasons, which it knew to be false, but to achieve savings by replacing full-time employees with part-time employees. App. 7-13. Both UPS and the Union moved for summary judgment on the ground that the action was barred by New York's 90-day statute of limitations for actions to vacate arbitration awards. Section 7511 (a) of the N. Y. Civ. Prac. Law (McKinney 1963) provides that "[a]n application to vacate or modify an [arbitration] award may be made by a party within ninety days after its delivery to him."
The District Court granted summary judgment in favor of UPS and the Union, ruling that respondent's action was properly characterized as one to vacate the arbitration award entered against him. The court reasoned: "The relief sought was expressly denied in an arbitration award issued as a result of a full-scale arbitration proceeding. The effect of any grant of the relief sought . . . would be to vacate the determination of the arbitrators." App. 129. Respondent appealed and the Court of Appeals for the Second Circuit reversed. 624 F.2d 394 (1980). That court held that the District Court should have applied New York's 6-year limitations period for actions alleging breach of contract, N. Y. Civ. Prac. Law § 213 (2) (McKinney 1972). It reasoned that respondent's action was analogous to a breach-of-contract action because the issues were whether the collective-bargaining agreement had been breached and whether the Union contributed to that breach by failure to discharge its duty of fair representation. The court further reasoned that a 6-year limitations period "provides for relatively rapid disposition of labor disputes without undermining an employee's ability to vindicate his rights through § 301 actions." 624 F.2d, at 397-398.
*60 We granted UPS' petition for certiorari. 449 U.S. 898 (1980).[1]
II
Congress has not enacted a statute of limitations governing actions brought pursuant to § 301 of the LMRA. As this Court pointed out in Auto Workers v. Hoosier Cardinal Corp., 383 U.S. 696, 704-705 (1966), "the timeliness of a § 301 suit . . . is to be determined, as a matter of federal law, by reference to the appropriate state statute of limitations."[2] Our present task is to determine which limitations period is "the most appropriate one provided by state law." Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 462 (1975). This depends upon an examination of the nature of the federal *61 claim and the federal policies involved. See Hoosier Cardinal, supra, at 706-707.
Although respondent did not style his suit as one to vacate the award of the Joint Panel, if he is successful the suit will have that direct effect. Respondent raises in his § 301 action the same claim that was raised before the Joint Panel that he was discharged in violation of the collective-bargaining agreement. He seeks the same relief he sought before the Joint Panelreinstatement with full backpay. In sum, "it is clear that [he] was dissatisfied with and simply seeks to upset the arbitrator's decision that the company did not wrongfully discharge him." Liotta v. National Forge Co., 629 F.2d 903, 905-906 (CA3 1980), cert. pending, No. 80-890.[3]
The Court of Appeals purported to rely on this Court's decision in Hines v. Anchor Motor Freight, Inc., but that decision strongly supports borrowing the limitations period for actions to vacate arbitration awards. As Hines makes clear, an employee may go behind a final and binding award under a collective-bargaining agreement and seek relief against his employer and union only when he demonstrates that his union's breach of its duty "seriously undermine[d] the integrity of the arbitral process." 424 U.S., at 567. Hines rejected the suggestion that "erroneous arbitration decisions must stand" in the face of the union's breach of its duty, id., at 571, suggesting that the suits it sanctioned are aptly characterized as ones to vacate such arbitration decisions. Indeed the present *62 writer, though in dissent on the merits in Hines, characterized the action as one to "vacate an . . . arbitration award." Id., at 575. See also Humphrey v. Moore, 375 U.S. 335, 336 (1964) (issue characterized as whether to enjoin implementation of decision of joint panel).
It is true that respondent's underlying claim against his employer is based on the collective-bargaining agreement, a contract. It is not enough, however, for an employee such as respondent to prove that he was discharged in violation of the collective-bargaining agreement. "To prevail against either the company or the Union, petitioners must not only show that their discharge was contrary to the contract but must also carry the burden of demonstrating breach of duty by the Union. . . . The grievance processes cannot be expected to be error-free." Hines, 424 U. S., at 570-571. Thus respondent's characterization of his action against the employer as one for "breach of contract" ignores the significance of the fact that it was brought in the District Court pursuant to § 301 (a) of the LMRA and that the indispensable predicate for such an action is not a showing under traditional contract law that the discharge was a breach of the collective-bargaining agreement, but instead a demonstration that the Union breached its duty of fair representation. Since the conclusion of the Joint Panel was, under the collective-bargaining agreement, "binding on all parties," respondent was required in some way to show that the Union's duty to represent him fairly at the arbitration had been breached before he was entitled to reach the merits of his contract claim. This, in our view, makes the suit more analogous to an action to vacate an arbitration award than to a straight contract action.[4]
*63 We think that the unfair representation claim made by an employee against his union, even though his employer may ultimately be called upon to respond in damages for it if he is successful, is more a creature of "labor law" as it has developed since the enactment of § 301 than it is of general contract law. We said in Hoosier Cardinal that one of the leading federal policies in this area is the "relatively rapid disposition of labor disputes." 383 U.S., at 707. Cf. 29 U.S. C. § 160 (b) (6-month period under NLRA). This policy was one of the reasons the Court in Hoosier Cardinal chose the generally shorter period for actions based on an oral contract rather than that for actions upon a written contract, 383 U.S., at 707, and similar analysis supports our adoption of the shorter period for actions to vacate an arbitration award in this case.[5]
It is important to bear in mind the observations made in the Steelworkers Trilogy that "the grievance machinery under a collective bargaining agreement is at the very heart of the system of industrial self-government. . . . The processing . . . machinery is actually a vehicle by which meaning and content are given to the collective bargaining agreement." Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 581 (1960). Although the present case involves a fairly mundane *64 and discrete wrongful-discharge complaint, the grievance and arbitration procedure often processes disputes involving interpretation of critical terms in the collective-bargaining agreement affecting the entire relationship between company and union. See, e. g., Humphrey v. Moore, supra (seniority rights of all employees). This system, with its heavy emphasis on grievance, arbitration, and the "law of the shop," could easily become unworkable if a decision which has given "meaning and content" to the terms of an agreement, and even affected subsequent modifications of the agreement, could suddenly be called into question as much as six years later.
Obviously, if New York had adopted a specific 6-year statute of limitations for employee challenges to awards of a joint panel or similar body, we would be bound to apply that statute under the reasoning of Hoosier Cardinal. But in cases such as this, where generally state limitations periods were enacted prior to the enactment of § 301 by Congress in 1947, we are necessarily committed by prior decisional law to choosing among statutes of limitations none of which fit hand in glove with an action under § 301 (a) of the LMRA. Given the choices present here, and the undesirability of the results of the grievance and arbitral process being suspended in limbo for long periods, we think the District Court was correct when it chose the 90-day period imposed by New York for the bringing of an action to vacate an arbitration award.
Accordingly, the judgment of the Court of Appeals is
Reversed. | We are called upon in this case to determine which state statute of limitations period should be borrowed and applied to an employee's action against his employer under 301 (a) of the Labor Management Relations Act, 1947, 29 U.S. C. 185 (a), and I Petitioner United Parcel Service, (UPS), employed respondent Mitchell (respondent) as a car washer at its facility on Staten Island, N. Y. On January 13, 1977, respondent was discharged for dishonest acts, including falsifying his timecards and claiming payment for hours which he did not work. Respondent denied the charges against him and requested his union, Department Store and Wholesale Drivers, Warehousemen and Helpers, Local Union No. 177 (the Union), to file a grievance on his behalf contesting the discharge. UPS and the Union were parties to a collective-bargaining agreement which provided a grievance and arbitration procedure for the resolution of disputes covered by the agreement. App. 57-67. Pursuant to the agreement respondent's grievance was submitted to a panel of the Atlantic Area Parcel Grievance Committee, composed of three union and three company representatives (the Joint Panel). Cf. The Joint Panel conducted a hearing, at which respondent was represented by the Union, and on February 16, 1977, it announced its decision that the discharge be upheld. App. 103-104. Under the collective-bargaining agreement this decision was "binding on all parties." ; see Seventeen months later, on July 20, 1978, respondent filed a complaint in the United States District Court for the Eastern *59 District of New York against the Union and UPS under 301 (a) of the Labor Management Relations Act, 29 U.S. C. 185 (a). See He alleged that the Union had breached its duty of fair representation and that UPS discharged him not for the stated reasons, which it knew to be false, but to achieve savings by replacing full-time employees with part-time employees. App. 7-13. Both UPS and the Union moved for summary judgment on the ground that the action was barred by New York's 90-day statute of limitations for actions to vacate arbitration awards. Section 7511 (a) of the N. Y. Civ. Prac. Law (McKinney 1963) provides that "[a]n application to vacate or modify an [arbitration] award may be made by a party within ninety days after its delivery to him." The District Court granted summary judgment in favor of UPS and the Union, ruling that respondent's action was properly characterized as one to vacate the arbitration award entered against him. The court reasoned: "The relief sought was expressly denied in an arbitration award issued as a result of a full-scale arbitration proceeding. The effect of any grant of the relief sought would be to vacate the determination of the arbitrators." App. 129. Respondent appealed and the Court of Appeals for the Second Circuit reversed. That court held that the District Court should have applied New York's 6-year limitations period for actions alleging breach of N. Y. Civ. Prac. Law 213 (2) (McKinney 1972). It reasoned that respondent's action was analogous to a breach-of- action because the issues were whether the collective-bargaining agreement had been breached and whether the Union contributed to that breach by failure to discharge its duty of fair representation. The court further reasoned that a 6-year limitations period "provides for relatively rapid disposition of labor disputes without undermining an employee's ability to vindicate his rights through 301 actions." -398. *60 We granted UPS' petition for certiorari.[1] II Congress has not enacted a statute of limitations governing actions brought pursuant to 301 of the LMRA. As this Court pointed out in Auto "the timeliness of a 301 suit is to be determined, as a matter of federal law, by reference to the appropriate state statute of limitations."[2] Our present task is to determine which limitations period is "the most appropriate one provided by state law." Johnson v. Railway Express Agency, This depends upon an examination of the nature of the federal *61 claim and the federal policies involved. See Hoosier Although respondent did not style his suit as one to vacate the award of the Joint Panel, if he is successful the suit will have that direct effect. Respondent raises in his 301 action the same claim that was raised before the Joint Panel that he was discharged in violation of the collective-bargaining agreement. He seeks the same relief he sought before the Joint Panelreinstatement with full backpay. In sum, "it is clear that [he] was dissatisfied with and simply seeks to upset the arbitrator's decision that the company did not wrongfully discharge him." cert. pending, No. 80-890.[3] The Court of Appeals purported to rely on this Court's decision in but that decision strongly supports borrowing the limitations period for actions to vacate arbitration awards. As Hines makes clear, an employee may go behind a final and binding award under a collective-bargaining agreement and seek relief against his employer and union only when he demonstrates that his union's breach of its duty "seriously undermine[d] the integrity of the arbitral process." Hines rejected the suggestion that "erroneous arbitration decisions must stand" in the face of the union's breach of its duty, suggesting that the suits it sanctioned are aptly characterized as ones to vacate such arbitration decisions. Indeed the present *62 writer, though in dissent on the merits in Hines, characterized the action as one to "vacate an arbitration award." See also It is true that respondent's underlying claim against his employer is based on the collective-bargaining agreement, a It is not enough, however, for an employee such as respondent to prove that he was discharged in violation of the collective-bargaining agreement. "To prevail against either the company or the Union, petitioners must not only show that their discharge was contrary to the but must also carry the burden of demonstrating breach of duty by the Union. The grievance processes cannot be expected to be error-free." Hines, -571. Thus respondent's characterization of his action against the employer as one for "breach of " ignores the significance of the fact that it was brought in the District Court pursuant to 301 (a) of the LMRA and that the indispensable predicate for such an action is not a showing under traditional law that the discharge was a breach of the collective-bargaining agreement, but instead a demonstration that the Union breached its duty of fair representation. Since the conclusion of the Joint Panel was, under the collective-bargaining agreement, "binding on all parties," respondent was required in some way to show that the Union's duty to represent him fairly at the arbitration had been breached before he was entitled to reach the merits of his claim. This, in our view, makes the suit more analogous to an action to vacate an arbitration award than to a straight action.[4] *63 We think that the unfair representation claim made by an employee against his union, even though his employer may ultimately be called upon to respond in damages for it if he is successful, is more a creature of "labor law" as it has developed since the enactment of 301 than it is of general law. We said in Hoosier that one of the leading federal policies in this area is the "relatively rapid disposition of labor disputes." Cf. 29 U.S. C. 160 (b) (6-month period under NLRA). This policy was one of the reasons the Court in Hoosier chose the generally shorter period for actions based on an oral rather than that for actions upon a written and similar analysis supports our adoption of the shorter period for actions to vacate an arbitration award in this case.[5] It is important to bear in mind the observations made in the Steelworkers Trilogy that "the grievance machinery under a collective bargaining agreement is at the very heart of the system of industrial self-government. The processing machinery is actually a vehicle by which meaning and content are given to the collective bargaining agreement." Although the present case involves a fairly mundane *64 and discrete wrongful-discharge complaint, the grievance and arbitration procedure often processes disputes involving interpretation of critical terms in the collective-bargaining agreement affecting the entire relationship between company and union. See, e. g., This system, with its heavy emphasis on grievance, arbitration, and the "law of the shop," could easily become unworkable if a decision which has given "meaning and content" to the terms of an agreement, and even affected subsequent modifications of the agreement, could suddenly be called into question as much as six years later. Obviously, if New York had adopted a specific 6-year statute of limitations for employee challenges to awards of a joint panel or similar body, we would be bound to apply that statute under the reasoning of Hoosier But in cases such as this, where generally state limitations periods were enacted prior to the enactment of 301 by Congress in 1947, we are necessarily committed by prior decisional law to choosing among statutes of limitations none of which fit hand in glove with an action under 301 (a) of the LMRA. Given the choices present here, and the undesirability of the results of the grievance and arbitral process being suspended in limbo for long periods, we think the District Court was correct when it chose the 90-day period imposed by New York for the bringing of an action to vacate an arbitration award. Accordingly, the judgment of the Court of Appeals is Reversed. |
Justice Brennan | dissenting | false | Group Life & Health Ins. Co. v. Royal Drug Co. | 1979-02-28T00:00:00 | null | https://www.courtlistener.com/opinion/110027/group-life-health-ins-co-v-royal-drug-co/ | https://www.courtlistener.com/api/rest/v3/clusters/110027/ | 1,979 | 1978-047 | 2 | 5 | 4 | The McCarran-Ferguson Act, 59 Stat. 33, as amended, 15 U.S. C. §§ 1011-1015, renders the federal antitrust laws inapplicable to the "business of insurance" to the extent such business is regulated by state law and is not subject to the "boycott" exception stated in § 1013 (b).[1] The single question presented by this case is whether the "business of insurance" *234 includes direct contractual arrangements ("provider agreements") between petitioner Blue Shield and third parties to provide benefits owed to the insurer's policyholders. The Court today holds that it does not.
I disagree: Since (a) there is no challenge to the status of Blue Shield's drug-benefits policy as the "business of insurance," I conclude (b) that some provider agreements negotiated to carry out the policy obligations of the insurer to the insured should be considered part of such business, and (c) that the specific Pharmacy Agreements at issue in this case should be included in such part. Before considering this analysis, however, it is necessary to set forth the background of the enactment of the McCarran-Ferguson Act.
I
SEC v. National Securities, Inc., 393 U.S. 453, 459 (1969), recognized that the legislative history of the McCarran-Ferguson Act sheds little light on the meaning of the words "business of insurance." See S. Rep. No. 20, 79th Cong., 1st Sess. (1945); H. R. Rep. No. 143, 79th Cong., 1st Sess. (1945). But while the legislative history is largely silent on the matter,[2] it does indicate that Congress deliberately chose *235 to phrase the exemption broadly. Congress had draft bills before it which would have limited the "business of insurance" to a narrow range of specified insurance company practices, but chose instead the more general language which ultimately became law.[3]
*236 The historical background of the statute's enactment, developed by the Court in SEC v. National Securities, Inc., supra, provides the guide to congressional purpose:
"The McCarran-Ferguson Act was passed in reaction to this Court's decision in United States v. South-Eastern Underwriters Assn., 322 U.S. 533 (1944). Prior to that decision, it had been assumed, in the language of the leading case, that `[i]ssuing a policy of insurance is not a transaction of commerce.' Paul v. Virginia, 8 Wall. 168, 183 (1869). Consequently, regulation of insurance transactions was thought to rest exclusively with the States. In South-Eastern Underwriters, this Court held that insurance transactions were subject to federal regulation under the Commerce Clause, and that the antitrust laws, in particular, were applicable to them. Congress reacted quickly . . . [, being] concerned about the inroads the Court's decision might make on the tradition of state regulation of insurance. The McCarran-Ferguson Act was the product of this concern. Its purpose was stated quite clearly in its first section; Congress declared that `the continued regulation and taxation by the several States of the business of insurance is in the public interest.' 59 Stat. 33 (1945), 15 U.S. C. § 1011. As this Court said shortly afterward, `[o]bviously Congress' purpose was broadly to give support to the existing and future state systems for regulating and taxing the business of insurance.' Prudential Insurance Co. v. Benjamin, 328 U.S. 408, 429 (1946).
"The . . . Act was an attempt to turn back the clock, to assure that the activities of insurance companies in dealing with their policyholders would remain subject to state regulation." 393 U.S., at 458-459.
See also St. Paul Fire & Marine Ins. Co. v. Barry, 438 U.S. 531, 538-539 (1978); 90 Cong. Rec. 6524 (1944) (Cong. Walter) *237 ("[T]he legislation . . . is designed to restore to the status quo the position the insurance business of this Nation occupied before the Supreme Court recently legislated [in South-Eastern Underwriters]").
Since continuation of state regulation as it existed before South-Eastern was Congress' goal,[4] evidence of what States *238 might reasonably have considered to be and regulated as insurance at the time the McCarran-Ferguson Act was passed in 1945 is clearly relevant to our decision. This does not mean that a transaction not viewed as insurance in 1945 cannot be so viewed today.
"We realize that . . . insurance is an evolving institution. Common knowledge tells us that the forms have greatly changed even in a generation. And we would not undertake to freeze the concep[t] of `insurance' . . . into the mold [it] fitted when these Federal Acts were passed." SEC v. Variable Annuity Life Ins. Co., 359 U.S. 65, 71 (1959).
It is thus logical to suppose that if elements common to the ordinary understanding of "insurance" are present, new forms of the business should constitute the "business of insurance" for purposes of the McCarran-Ferguson Act. The determination of the scope of the Act, therefore, involves both an analysis of the proximity between the challenged transactions and those well recognized as elements of "insurance," and an examination of the historical setting of the Act. On both counts, Blue Shield's Pharmacy Agreements constitute the "business of insurance."
*239 II
I start with common ground. Neither the Court, ante, at 230 n. 37, nor the parties challenge the fact that the drug-benefits policy offered by Blue Shield to its policyholdersas distinguished from the contract between Blue Shield and the pharmacies is the "business of insurance." Whatever the merits of scholastic argument over the technical definition of "insurance," the policy both transfers and distributes risk. The policyholder pays a sum certainthe premiumagainst the risk of the uncertain contingency of illness, and if the company has calculated correctly, the premiums of those who do not fall ill pay the costs of benefits above the premiums of those who do. See R. Mehr & E. Cammack, Principles of Insurance 31-32 (6th ed. 1976). An important difference between Blue Shield's policy and other forms of health insurance is that Blue Shield "pays" the policyholder in goods and services (drugs and their dispensation), rather than in cash. Since we will not "freeze the concep[t] of `insurance' . . . into the mold it fitted" when McCarran-Ferguson was passed, this difference cannot be a reason for holding that the drug-benefits policy falls outside the "business of insurance" even if our inquiry into the understandings of what constituted "insurance" in the 1930's and 1940's were to suggest that a contrary view prevailed at that time.[5]
Fortunately, logic and history yield the same result. It is true that the first health insurance policies provided only cash indemnities. However, although policies that specifically provided drug benefits were not available during the 1930's and 1940's analogous policies providing hospital and medical servicesrather than cashwere available.
The hospital service-benefit concept originated in Texas in *240 1929; medical services were first offered in 1939. R. Eilers, Regulation of Blue Cross and Blue Shield Plans 10, 15 (1963) (hereinafter Eilers). In 1940, 4,500,000 people in 60 communities were covered by Blue Cross or related hospital-benefits plans. C. Rorem, Non-Profit Hospital Service Plans 1-2 (1940) (hereinafter Rorem I). During the 1940's, health insurance became a subject of collective bargaining, with unions demanding the service-benefit approach of Blue Cross and Blue Shield. S. Law, Blue Cross 11 (1974) (hereinafter Law). By 1945, the year the McCarran-Ferguson Act was enacted, over 20 million people were enrolled in service-benefit programs, with service-benefit plans comprising 61% of the total hospitalization insurance market. See Hearings before the Senate Committee on Education and Labor, A National Health Program, 79th Cong., 2d Sess., pt. 1, p. 173 (1946); Eilers 19; Law 11.
Moreover, regulation of the service-benefit plans was a part of the system of state regulation of insurance that the McCarran-Ferguson Act was designed to preserve. Led by New York in 1934, 24 States passed enabling Acts by 1939 which, while relieving the plans of certain reserve requirements and tax obligations, specifically subjected service-benefit plans to the supervision and control of state departments of insurance.[6] See Rorem, Enabling Legislation for Non-Profit Hospital Service Plans, 6 Law & Contemp. Prob. 528, 531, 534 (1939) (hereinafter Rorem II); N. Sinai, O. Anderson, & M. Dollar, Health Insurance in the United States *241 48-49 (1946) (hereinafter Sinai); Comment, Group Health Plans: Some Legal and Economic Aspects, 53 Yale L. J. 162, 174 (1943). Another 16 States apparently limited the issuance of hospitalization insurance to stock and mutual insurance companies. Nine acted on the premise that the plans were not "insurance" and authorized operation under general corporation laws, exempt from reserve requirements. Rorem II, p. 532. By the time the McCarran-Ferguson Act was passed, 35 States had enabling legislation.[7] During this period, the National Association of Insurance Commissioners (NAIC), the organization of state insurance directors which played a major role in drafting the McCarran-Ferguson Act,[8] was also drafting model state enabling legislation to govern service-benefit health plans. Proceedings of the NAIC, 75th Sess., 226 (1944); id., 76th Sess., 250 (1945).[9]
*242 Thus, when the McCarran-Ferguson Act became law, service-benefit plans similar to the Blue Shield plan at issue here were a widespread and well-recognized form of insurance, subject to regulation in most of the States. Congress itself treated these important programs as insurance. In 1939, Congress adopted an enabling Act incorporating a hospitalization-benefits plan in the District of Columbia, with supervisory *243 authority placed in the hands of the Superintendent of Insurance. See H. R. 6266, 76th Cong., 1st Sess. (1939); H. R. Rep. No. 1247, 76th Cong., 1st Sess. (1939); 84 Cong. Rec. 11224 (1939). And in hearings held the year after passage of the McCarran-Ferguson Act, the same Congress that approved that Act debated Blue Shield-type programs as alternatives to national health insurance, with participating Congressmen frequently referring to them as "insurance." Hearings before the Senate Committee on Education and Labor, A National Health Program, 79th Cong., 2d Sess., pt. 1, pp. 55, 83, 108, 172, pt. 2, p. 558 (1946).[10] The status of service-benefit policies as "insurance," both logically and historically, is therefore sufficiently established to make that the first premise in an analysis of the status of the Pharmacy Agreements at issue in this case.
III
The next question is whether at least some contracts with third parties to procure delivery of benefits to Blue Shield's insureds would also constitute the "business of insurance." Such contracts, like those between Blue Shield and the druggists in this case, are known as "provider agreements." The Court, adopting the view of the Solicitor General, today holds that no provider agreements can be considered part of the "business of insurance."[11] It contends that the "underwriting or spreading of risk [is] an indispensable characteristic of *244 insurance." ante, at 212,[12] and that "[a]nother commonly understood aspect of the business of insurance relates to the contract between the insurer and the insured." Ante, at 215. Because provider agreements neither themselves spread risk, nor involve transactions between insurers and insureds, the Court excludes them from the "business of insurance."
The argument fails in light of this Court's prior decisions and the legislative history of the Act. The Court has held, for example, FTC v. National Casualty Co., 357 U.S. 560 (1958), that the advertising of insurance, a unilateral act which does not involve underwriting, is within the scope of the McCarran-Ferguson Act. And the legislative history makes it abundantly clear that numerous horizontal agreements between insurance companies which do not technically involve the underwriting of risk were regarded by Congress as within the scope of the Act's exemption for the "business of insurance." For example, rate agreements among insurers, a conspicuous congressional illustration, see, e. g., 91 Cong. Rec. 1481, 1484 (1945) (remarks of Sens. Pepper and Ferguson), and the subject of the South-Eastern Underwriters case, see SEC v. National Securities, Inc., 393 U. S., at 460, do not themselves spread risk. Indeed, the Court apparently concedes that arrangements among insurance companies respecting premiums and benefits would constitute the "business of insurance," despite their failure to fit within its formula. Ante, at 221 and 224-225, n. 32.
But the Court's attempt to limit its concession to horizontal transactions still conflicts with the legislative history. Compelling evidence is the fact that Congress actually rejected a proposed bill to limit the exemption to agreements between *245 insurance companies. S. 12, 79th Cong., 1st Sess. (1945). See n. 3, supra. Moreover, vertical relationships between insurance companies and independent sales agencies were a subject of the indictment in United States v. South-Eastern Underwriters Assn., 322 U.S. 533, 535 (1944), were the object of discussion in the House, 90 Cong. Rec. 6538 (1944) (remarks of Cong. Celler), and were expressly included as part of the "business of insurance" in an early draft of the Act, id., at A4406 (NAIC bill, § 4 (b) (5)). Again, the Court concedes that such transactions, between insurers and agents, might fall within the "business of insurance," despite the inconsistency with the Court's own theory. Ante, at 224-225, n. 32.[13]
The Court's limitation also ignores the significance of pervasive state insurance regulationprevailing when the Act was passedof hospitalization-benefits plans whose "distinctive feature," Rorem I, p. 64; Proceedings of the NAIC, 75th Sess., 228 (1944), was the provider contract with the participating hospital to provide service when needed. The year prior to adoption of the Act the NAIC emphasized the relationship between provider agreements and service-benefit policies:
"A hospital service plan is designed to provide service rather than to indemnify and this can only be guaranteed through contractual arrangements between plans and hospitals." Ibid.
The Association also proposed, in the year McCarran-Ferguson passed, a model state enabling Act requiring "full approval of . . . contracts with hospitals . . . by the insurance commissioner." Proceedings of the NAIC, 76th Sess., 250 *246 (1945). That proposal reflected well the actual contents of existing state enabling Acts which armed insurance commissioners with considerable authority to regulate provider agreements.[14] Congress itself authorized the service-benefit plan it incorporated in the District of Columbia "to enter into contracts with hospitals for the care and treatment of [its subscribers]." H. R. 6266, 76th Cong., 1st Sess. (1939). In light of Congress' objective through the McCarran-Ferguson Act to insure the continuation of existing state regulation, the conclusion that at least some provider agreements were intended to be within the "business of insurance" is inescapable.
Logic compels the same conclusion. Some kind of provider agreement becomes a necessity if a service-benefits insurer is to meet its obligations to the insureds. The policy before us in this case, for example, promises payment of benefits in drugs. Thus, some arrangement must be made to provide those drugs for subscribers.[15] Such an arrangement obtains *247 the very benefits promised in the policy; it does not simply relate to the general operation of the company. A provider contract in a service-benefit plan, therefore, is critical to "the type of policy which could be issued" as well as to its "reliability" and "enforcement." It thus comes within the terms of SEC v. National Securities, Inc., 393 U. S., at 460. That case explained that the "business of insurance" involves not only the "relationship between insurer and insured," but also "other activities of insurance companies [that] relate so closely to their status as reliable insurers that they too must be placed in the same class." Thus, "[s]tatutes aimed at protecting or regulating . . . [the insurer/insured] relationship, directly or indirectly, are laws regulating the `business of insurance.' " Ibid. (emphasis added).
The Congress that passed McCarran-Ferguson was composed of neither insurance experts nor dictionary editors. Rather than use the technical term "underwriting" to express its meaning, Congress chose "the business of insurance," a common-sense term connoting not only risk underwriting, but contracts closely related thereto.[16] Since Congress knew of service-benefit policies, and viewed them as insurance, it would strain common sense to suppose Congress viewed contracts *248 necessary to effectuate those policies' commitments as being outside the business it sought to exempt from the antitrust laws.
IV
The remaining question is whether the provider agreement in this case constitutes the "business of insurance." Respondents contend that even if some contract between Blue Shield and the pharmacies is necessary, this one is not. Under the contract at issue, the druggist agrees to dispense drugs to Blue Shield's insureds for a $2 payment, and Blue Shield agrees to reimburse the druggist for the acquisition cost of each drug so dispensed. The pharmacy is thus limited to a $2 "markup." With support from the Court of Appeals, respondents argue that only the first half of the bargain is necessary for Blue Shield to fulfill its policy obligations. Those are fulfilled when Blue Shield binds the pharmacy to dispense the requested drug for $2. The second half of the agreement, the amount Blue Shield reimburses the druggist, is assertedly irrelevant to the policyholder. As an alternative to the existing plan, the respondents and the Court of Appeals suggest that Blue Shield could simply pay the pharmacist his usual charge (minus the $2 paid by the policyholder). The present plan, which limits reimbursement to acquisition cost and freezes the markup at $2, is said to set a "fixed" price. From this premise respondents argue that such fixed-price plans are "anticompetitive," and therefore not the "business of insurance."
Respondents' argument is directly contradicted by history. The service-benefit plans available when the McCarran-Ferguson Act was passed actually "fixed" more of the payment to their participating providers than does the plan here, which "fixes" only the markup. Those early plans usually paid established and equal amounts to their participating hospitals, rather than paying whatever each hospital charged. Rorem I, p. 64. Moreover, under the typical state enabling Act, those *249 payments were subject to the approval of the state department of insurance.[17] The 1937 Pennsylvania statute, for example, provided that "all rates of payments to hospitals made by such [service-benefit plan] corporations . . . and any and all contracts entered into by any such corporation with any hospital, shall, at all times, be subject to the prior approval of the Insurance Department." 1937 Pa. Laws No. 378. Therefore, as insurer/provider fee agreements were part of the system of state regulation which the McCarran-Ferguson Act sought to preserve, there is no historical reason to exclude Blue Shield's Pharmacy Agreements from the ambit of the exemption; there is instead a good historical reason for including them.
Nor does respondents' claim that the Pharmacy Agreements are "anticompetitive" exclude them from constituting the "business of insurance." The determination of whether Blue Shield's Pharmacy Agreements actually involve antitrust violations or are otherwise anticompetitive has been held in abeyance, pending final decision as to whether the agreements fall within the scope of the McCarran-Ferguson Act. But even if the agreements were anticompetitive, that alone could not be the basis for excluding them from the "business of insurance." An antitrust exemption by its very nature must protect some transactions that are anticompetitive; an exemption that is extinguished by a finding that challenged activity violates the antitrust laws is no exemption at all.
While this reason for excluding the Pharmacy Agreements from the circle of exempt provider agreements is unconvincing, there are substantial reasons, in addition to history, for including them within that circle. First, it is clear that the contractual arrangement utilized by Blue Shield affects its *250 costs, and thus affects both the setting of rates and the insurer's reliability. This is definitely a factor relevant to the determination of whether a transaction is within the "business of insurance." See SEC v. National Securities, Inc., 393 U. S., at 460. See also Proctor v. State Farm Mutual Automobile Ins. Co., 182 U. S. App. D. C. 264, 561 F.2d 262 (1977). True, that factor alone is not determinative, for as argued by the Court, innumerable agreements, including the lease on the insurance company's offices, affect cost. This contract, however, has more than a mere incidental connection to the policy and premium. It is a direct arrangement to provide the very goods and services whose purchase is the risk assumed in the insurance policy. It is therefore integral to the insurer's rate-setting process, as the correlation between rates and drug prices in a drug-benefits policy is necessarily high. Moreover, the ability of state insurance commissioners to regulate rates, an important concern of the Act, is measurably enhanced by their ability to control the formulas by which insurers reimburse providers.[18] The same is true of state efforts to ensure that plans are financially reliable. See Travelers Ins. Co. v. Blue Cross of Western Pennsylvania, 481 F.2d 80, 83 n. 9 (CA3 1973) (quoting the Pennsylvania Insurance Commissioner). This close nexus between the Pharmacy Agreements and both the rates and fiscal reliability of Blue Shield's plan speaks strongly for their inclusion within the "business of insurance." See generally Proctor v. State *251 Farm Mutual Automobile Ins. Co., supra, at 271-272, 561 F.2d, at 269-270.
Another reason, in addition to this nexus to basic insurance elements, also supports the conclusion that fixed-price provider agreements are the "business of insurance." Such agreements themselves perform an important insurance function. It may be true, as the Court contends, that conventional notions of insurance focus on the underwriting of risk. But they also include efforts to reduce the unpredictable aspects of the risks assumed. Traditional plans achieve this end by setting ceilings on cash payments or utilizing large deductibles. R. Mehr & E. Cammack, Principles of Insurance 222 (6th ed. 1976). Even if the insurer cannot know how often a policyholder might become ill, it can know the extent of its exposure in the event of illness. The actuarial uncertainty, therefore, is greatly reduced. A fixed-price provider agreement attempts to reach the same result by contracting in advance for a price, rather than agreeing to pay as the market fluctuates. The agreement on price at least minimizes the variance of the "payoff" variable, even if the probability of its occurrence remains an unknown. Indeed, if examined carefully, this function comes within the latter half of the definition of "underwriting" offered by the Solicitor General: "spread[ing] risk more widely or reduc[ing] the role of chance events." See n. 12, supra. Of course, the Pharmacy Agreements in this case do not totally control "the role of chance" in drug prices since acquisition costs may fluctuate even if "markup" is fixed, but they are at least an attempt to reduce the role of chance to manageable proportions.[19]
Moreover, a service-benefit plan which "pay[s] the cost . . . whatever it might be," as hypothesized by the Court of *252 Appeals, 556 F.2d, at 1381, would run grave risks of bankruptcy. Since it would expose the insurer to unknown liability, it would measurably increase the probability that an incorrect assessment of exposure would occur. This could lead to a failure to cover actual losses with premiums. Respondents argue that this fiscal-reliability problem could be solved by placing a dollar limit on benefits. But such a plan would be almost indistinguishable from a cash-indemnity policy. It would not be the full-service-regardless-of-price plan for which the policyholders bargained.[20] The Pharmacy Agreements are thus "other activities of insurance companies relate[d] so closely to their status as reliable insurers that they too must be placed in the same class." SEC v. National Securities, Inc., supra, at 460.
V
The process of deciding what is and is not the "business of insurance" is inherently a case-by-case problem. It is true that the conclusion advocated here carries with it line-drawing problems. That is necessarily so once the provider-agreement line is crossed by holding some to be within the "business." But that is a line which history and logic compel me to cross. I would hold that the concept of a provider agreement for benefits promised in the policy is within the "business of insurance" because some form of provider agreement is necessary to fulfill the obligations of a service-benefit policy. I would hold that these provider agreements, Blue Shield's Pharmacy Agreements, are protected because they (1) directly obtain the very benefits promised in the policy[21] and therefore *253 directly affect rates, cost, and insurer reliability, and (2) themselves constitute a critical element of risk "prediction."[22] The conclusion that these kinds of agreements are the "business of insurance" is that reached by every Court of Appeals except the Court of Appeals in this case.[23]
I would not suggest, however, that all provider agreements come within the McCarran-Ferguson Act proviso. Given the facts found by the District Court upon summary judgment, this is not a case where the petitioner pharmacies themselves conspired to exclude others from the market, and either pressured Blue Shield to go along, or were voluntarily joined by the insurer. See also Government Brief 13 n. 6. Such an agreement among pharmacies, itself neither necessary nor related to the insurer's effort to satisfy its obligations to its policyholders, would be outside the "business of insurance." An insurance company cannot immunize an illegal conspiracy by joining it. Cf. Parker v. Brown, 317 U.S. 341, 351-352 *254 (1943). Moreover, since in this case the Blue Shield plan was offered to all San Antonio pharmacies and was in fact agreed to by at least 12, I am not called upon to decide whether an exclusive arrangement with a single provider would be so tenuously related to providing policyholder benefits as to be beyond the exemption's protection. See generally Proctor v. State Farm Mutual Automobile Ins. Co., 182 U. S. App. D. C., at 270 n. 10, 561 F.2d, at 268 n. 10.[24]
Finally, the conclusion that Blue Shield's Pharmacy Agreements should be held within the "business of insurance"[25]*255 does not alone establish whether the agreements enjoy an exemption from the antitrust laws. To be entitled to an exemption, petitioners still would have to demonstrate that the transactions are in fact truly regulated by the State, 15 U.S. C. § 1012 (b), and that they do not fall within the "boycott" exception of 15 U.S. C. § 1013 (b). The District Court held for petitioners on both issues. Neither issue was reached by the Court of Appeals, however, in light of its holding that the contracts were not the "business of insurance." Accordingly, *256 I would reverse the judgment of the Court of Appeals and remand the case for further proceedings.[26]
| The McCarran-Ferguson Act, as amended, 15 U.S. C. 11-15, renders the federal antitrust laws inapplicable to the "business of insurance" to the extent such business is regulated by state law and is not subject to the "boycott" exception stated in 1 (b).[1] The single question presented by this case is whether the "business of insurance" *24 includes direct contractual arrangements ("provider agreements") between petitioner Blue Shield and third parties to provide benefits owed to the insurer's policyholders. The Court today holds that it does not. I disagree: Since (a) there is no challenge to the status of Blue Shield's drug-benefits policy as the "business of insurance," I conclude (b) that some provider agreements negotiated to carry out the policy obligations of the insurer to the insured should be considered part of such business, and (c) that the specific Pharmacy Agreements at issue in this case should be included in such part. Before considering this analysis, however, it is necessary to set forth the background of the enactment of the McCarran-Ferguson Act. I recognized that the legislative history of the McCarran-Ferguson Act sheds little light on the meaning of the words "business of insurance." See S. Rep. No. 20, 79th Cong., 1st Sess. (1945); H. R. Rep. No. 14, 79th Cong., 1st Sess. (1945). But while the legislative history is largely silent on the matter,[2] it does indicate that Congress deliberately chose *25 to phrase the exemption broadly. Congress had draft bills before it which would have limited the "business of insurance" to a narrow range of specified insurance company practices, but chose instead the more general language which ultimately became law.[] *26 The historical background of the statute's enactment, developed by the Court in provides the guide to congressional purpose: "The McCarran-Ferguson Act was passed in reaction to this Court's decision in United Prior to that decision, it had been assumed, in the language of the leading case, that `[i]ssuing a policy of insurance is not a transaction of commerce.' Consequently, regulation of insurance transactions was thought to rest exclusively with the States. In South-Eastern Underwriters, this Court held that insurance transactions were subject to federal regulation under the Commerce Clause, and that the antitrust laws, in particular, were applicable to them. Congress reacted quickly [, being] concerned about the inroads the Court's decision might make on the tradition of state regulation of insurance. The McCarran-Ferguson Act was the product of this concern. Its purpose was stated quite clearly in its first section; Congress declared that `the continued regulation and taxation by the several States of the business of insurance is in the public interest.' (1945), 15 U.S. C. 11. As this Court said shortly afterward, `[o]bviously Congress' purpose was broadly to give support to the existing and future state systems for regulating and taxing the business of insurance.' Prudential Insurance "The Act was an attempt to turn back the clock, to assure that the activities of insurance companies in dealing with their policyholders would remain subject to state regulation." -. See also St. Paul Fire & Marine Ins. ; 90 Cong. Rec. 6524 (Cong. Walter) *27 ("[T]he legislation is designed to restore to the status quo the position the insurance business of this Nation occupied before the Supreme Court recently legislated [in South-Eastern Underwriters]"). Since continuation of state regulation as it existed before South-Eastern was Congress' goal,[4] evidence of what States *28 might reasonably have considered to be and regulated as insurance at the time the McCarran-Ferguson Act was passed in 1945 is clearly relevant to our decision. This does not mean that a transaction not viewed as insurance in 1945 cannot be so viewed today. "We realize that insurance is an evolving institution. Common knowledge tells us that the forms have greatly changed even in a generation. And we would not undertake to freeze the concep[t] of `insurance' into the mold [it] fitted when these Federal Acts were passed." It is thus logical to suppose that if elements common to the ordinary understanding of "insurance" are present, new forms of the business should constitute the "business of insurance" for purposes of the McCarran-Ferguson Act. The determination of the scope of the Act, therefore, involves both an analysis of the proximity between the challenged transactions and those well recognized as elements of "insurance," and an examination of the historical setting of the Act. On both counts, Blue Shield's Pharmacy Agreements constitute the "business of insurance." *29 II I start with common ground. Neither the Court, ante, at 20 n. 7, nor the parties challenge the fact that the drug-benefits policy offered by Blue Shield to its policyholdersas distinguished from the contract between Blue Shield and the pharmacies is the "business of insurance." Whatever the merits of scholastic argument over the technical definition of "insurance," the policy both transfers and distributes risk. The policyholder pays a sum certainthe premiumagainst the risk of the uncertain contingency of illness, and if the company has calculated correctly, the premiums of those who do not fall ill pay the costs of benefits above the premiums of those who do. See R. Mehr & E. Cammack, Principles of Insurance 1-2 (6th ed. 1976). An important difference between Blue Shield's policy and other forms of health insurance is that Blue Shield "pays" the policyholder in goods and services (drugs and their dispensation), rather than in cash. Since we will not "freeze the concep[t] of `insurance' into the mold it fitted" when McCarran-Ferguson was passed, this difference cannot be a reason for holding that the drug-benefits policy falls outside the "business of insurance" even if our inquiry into the understandings of what constituted "insurance" in the 190's and 1940's were to suggest that a contrary view prevailed at that time.[5] Fortunately, logic and history yield the same result. It is true that the first health insurance policies provided only cash indemnities. However, although policies that specifically provided drug benefits were not available during the 190's and 1940's analogous policies providing hospital and medical servicesrather than cashwere available. The hospital service-benefit concept originated in Texas in *240 1929; medical services were first offered in 199. R. Eilers, Regulation of Blue Cross and Blue Shield Plans 15 (196) (hereinafter Eilers). In 1940, 4,500,000 people in 60 communities were covered by Blue Cross or related hospital-benefits plans. C. Rorem, Non-Profit Hospital Service Plans 1-2 (1940) (hereinafter Rorem I). During the 1940's, health insurance became a subject of collective bargaining, with unions demanding the service-benefit approach of Blue Cross and Blue Shield. S. Law, Blue Cross 11 (1974) (hereinafter Law). By 1945, the year the McCarran-Ferguson Act was enacted, over 20 million people were enrolled in service-benefit programs, with service-benefit plans comprising 61% of the total hospitalization insurance market. See Hearings before the Senate Committee on Education and Labor, A National Health Program, 79th Cong., 2d Sess., pt. 1, p. 17 ; Eilers 19; Law 11. Moreover, regulation of the service-benefit plans was a part of the system of state regulation of insurance that the McCarran-Ferguson Act was designed to preserve. Led by New York in 194, 24 States passed enabling Acts by 199 which, while relieving the plans of certain reserve requirements and tax obligations, specifically subjected service-benefit plans to the supervision and control of state departments of insurance.[6] See Rorem, Enabling Legislation for Non-Profit Hospital Service Plans, 6 Law & Contemp. Prob. 528, 51, 54 (199) (hereinafter Rorem II); N. Sinai, O. Anderson, & M. Dollar, Health Insurance in the United States *241 48-49 (hereinafter Sinai); Comment, Group Health Plans: Some Legal and Economic Aspects, 5 Yale L. J. 162, 174 (194). Another 16 States apparently limited the issuance of hospitalization insurance to stock and mutual insurance companies. Nine acted on the premise that the plans were not "insurance" and authorized operation under general corporation laws, exempt from reserve requirements. Rorem II, p. 52. By the time the McCarran-Ferguson Act was passed, 5 States had enabling legislation.[7] During this period, the National Association of Insurance Commissioners (NAIC), the organization of state insurance directors which played a major role in drafting the McCarran-Ferguson Act,[8] was also drafting model state enabling legislation to govern service-benefit health plans. Proceedings of the NAIC, 75th Sess., 226 ; 76th Sess., 250 (1945).[9] *242 Thus, when the McCarran-Ferguson Act became law, service-benefit plans similar to the Blue Shield plan at issue here were a widespread and well-recognized form of insurance, subject to regulation in most of the States. Congress itself treated these important programs as insurance. In 199, Congress adopted an enabling Act incorporating a hospitalization-benefits plan in the District of Columbia, with supervisory *24 authority placed in the hands of the Superintendent of Insurance. See H. R. 6266, 76th Cong., 1st Sess. (199); H. R. Rep. No. 47, 76th Cong., 1st Sess. (199); 84 Cong. Rec. 124 (199). And in hearings held the year after passage of the McCarran-Ferguson Act, the same Congress that approved that Act debated Blue Shield-type programs as alternatives to national health insurance, with participating Congressmen frequently referring to them as "insurance." Hearings before the Senate Committee on Education and Labor, A National Health Program, 79th Cong., 2d Sess., pt. 1, pp. 55, 8, 8, 172, pt. 2, p. 558[] The status of service-benefit policies as "insurance," both logically and historically, is therefore sufficiently established to make that the first premise in an analysis of the status of the Pharmacy Agreements at issue in this case. III The next question is whether at least some contracts with third parties to procure delivery of benefits to Blue Shield's insureds would also constitute the "business of insurance." Such contracts, like those between Blue Shield and the druggists in this case, are known as "provider agreements." The Court, adopting the view of the Solicitor General, today holds that no provider agreements can be considered part of the "business of insurance."[11] It contends that the "underwriting or spreading of risk [is] an indispensable characteristic of *244 insurance." ante, at 2,[] and that "[a]nother commonly understood aspect of the business of insurance relates to the contract between the insurer and the insured." Ante, at 215. Because provider agreements neither themselves spread risk, nor involve transactions between insurers and insureds, the Court excludes them from the "business of insurance." The argument fails in light of this Court's prior decisions and the legislative history of the Act. The Court has held, for example, that the advertising of insurance, a unilateral act which does not involve underwriting, is within the scope of the McCarran-Ferguson Act. And the legislative history makes it abundantly clear that numerous horizontal agreements between insurance companies which do not technically involve the underwriting of risk were regarded by Congress as within the scope of the Act's exemption for the "business of insurance." For example, rate agreements among insurers, a conspicuous congressional illustration, see, e. g., 91 Cong. Rec. 1481, 1484 (1945) (remarks of Sens. Pepper and Ferguson), and the subject of the South-Eastern Underwriters case, see do not themselves spread risk. Indeed, the Court apparently concedes that arrangements among insurance companies respecting premiums and benefits would constitute the "business of insurance," despite their failure to fit within its formula. Ante, at 221 and 224-225, n. 2. But the Court's attempt to limit its concession to horizontal transactions still conflicts with the legislative history. Compelling evidence is the fact that Congress actually rejected a proposed bill to limit the exemption to agreements between *245 insurance companies. S. 79th Cong., 1st Sess. (1945). See n. Moreover, vertical relationships between insurance companies and independent sales agencies were a subject of the indictment in United 55 were the object of discussion in the House, 90 Cong. Rec. 658 (remarks of Cong. Celler), and were expressly included as part of the "business of insurance" in an early draft of the Act, at A4406 (NAIC bill, 4 (b) (5)). Again, the Court concedes that such transactions, between insurers and agents, might fall within the "business of insurance," despite the inconsistency with the Court's own theory. Ante, at 224-225, n. 2.[1] The Court's limitation also ignores the significance of pervasive state insurance regulationprevailing when the Act was passedof hospitalization-benefits plans whose "distinctive feature," Rorem I, p. 64; Proceedings of the NAIC, 75th Sess., 228 was the provider contract with the participating hospital to provide service when needed. The year prior to adoption of the Act the NAIC emphasized the relationship between provider agreements and service-benefit policies: "A hospital service plan is designed to provide service rather than to indemnify and this can only be guaranteed through contractual arrangements between plans and hospitals." The Association also proposed, in the year McCarran-Ferguson passed, a model state enabling Act requiring "full approval of contracts with hospitals by the insurance commissioner." Proceedings of the NAIC, 76th Sess., 250 *246 (1945). That proposal reflected well the actual contents of existing state enabling Acts which armed insurance commissioners with considerable authority to regulate provider agreements.[14] Congress itself authorized the service-benefit plan it incorporated in the District of Columbia "to enter into contracts with hospitals for the care and treatment of [its subscribers]." H. R. 6266, 76th Cong., 1st Sess. (199). In light of Congress' objective through the McCarran-Ferguson Act to insure the continuation of existing state regulation, the conclusion that at least some provider agreements were intended to be within the "business of insurance" is inescapable. Logic compels the same conclusion. Some kind of provider agreement becomes a necessity if a service-benefits insurer is to meet its obligations to the insureds. The policy before us in this case, for example, promises payment of benefits in drugs. Thus, some arrangement must be made to provide those drugs for subscribers.[15] Such an arrangement obtains *247 the very benefits promised in the policy; it does not simply relate to the general operation of the company. A provider contract in a service-benefit plan, therefore, is critical to "the type of policy which could be issued" as well as to its "reliability" and "enforcement." It thus comes within the terms of That case explained that the "business of insurance" involves not only the "relationship between insurer and insured," but also "other activities of insurance companies [that] relate so closely to their status as reliable insurers that they too must be placed in the same class." Thus, "[s]tatutes aimed at protecting or regulating [the insurer/insured] relationship, directly or indirectly, are laws regulating the `business of insurance.' " The Congress that passed McCarran-Ferguson was composed of neither insurance experts nor dictionary editors. Rather than use the technical term "underwriting" to express its meaning, Congress chose "the business of insurance," a common-sense term connoting not only risk underwriting, but contracts closely related thereto.[16] Since Congress knew of service-benefit policies, and viewed them as insurance, it would strain common sense to suppose Congress viewed contracts *248 necessary to effectuate those policies' commitments as being outside the business it sought to exempt from the antitrust laws. IV The remaining question is whether the provider agreement in this case constitutes the "business of insurance." Respondents contend that even if some contract between Blue Shield and the pharmacies is necessary, this one is not. Under the contract at issue, the druggist agrees to dispense drugs to Blue Shield's insureds for a $2 payment, and Blue Shield agrees to reimburse the druggist for the acquisition cost of each drug so dispensed. The pharmacy is thus limited to a $2 "markup." With support from the Court of respondents argue that only the first half of the bargain is necessary for Blue Shield to fulfill its policy obligations. Those are fulfilled when Blue Shield binds the pharmacy to dispense the requested drug for $2. The second half of the agreement, the amount Blue Shield reimburses the druggist, is assertedly irrelevant to the policyholder. As an alternative to the existing plan, the respondents and the Court of suggest that Blue Shield could simply pay the pharmacist his usual charge (minus the $2 paid by the policyholder). The present plan, which limits reimbursement to acquisition cost and freezes the markup at $2, is said to set a "fixed" price. From this premise respondents argue that such fixed-price plans are "anticompetitive," and therefore not the "business of insurance." Respondents' argument is directly contradicted by history. The service-benefit plans available when the McCarran-Ferguson Act was passed actually "fixed" more of the payment to their participating providers than does the plan here, which "fixes" only the markup. Those early plans usually paid established and equal amounts to their participating hospitals, rather than paying whatever each hospital charged. Rorem I, p. 64. Moreover, under the typical state enabling Act, those *249 payments were subject to the approval of the state department of insurance.[17] The 197 Pennsylvania statute, for example, provided that "all rates of payments to hospitals made by such [service-benefit plan] corporations and any and all contracts entered into by any such corporation with any hospital, shall, at all times, be subject to the prior approval of the Insurance Department." 197 Pa. Laws No. 78. Therefore, as insurer/provider fee agreements were part of the system of state regulation which the McCarran-Ferguson Act sought to preserve, there is no historical reason to exclude Blue Shield's Pharmacy Agreements from the ambit of the exemption; there is instead a good historical reason for including them. Nor does respondents' claim that the Pharmacy Agreements are "anticompetitive" exclude them from constituting the "business of insurance." The determination of whether Blue Shield's Pharmacy Agreements actually involve antitrust violations or are otherwise anticompetitive has been held in abeyance, pending final decision as to whether the agreements fall within the scope of the McCarran-Ferguson Act. But even if the agreements were anticompetitive, that alone could not be the basis for excluding them from the "business of insurance." An antitrust exemption by its very nature must protect some transactions that are anticompetitive; an exemption that is extinguished by a finding that challenged activity violates the antitrust laws is no exemption at all. While this reason for excluding the Pharmacy Agreements from the circle of exempt provider agreements is unconvincing, there are substantial reasons, in addition to history, for including them within that circle. First, it is clear that the contractual arrangement utilized by Blue Shield affects its *250 costs, and thus affects both the setting of rates and the insurer's reliability. This is definitely a factor relevant to the determination of whether a transaction is within the "business of insurance." See See also Proctor v. State Farm Mutual Automobile Ins. 182 U. S. App. D. C. 264, True, that factor alone is not determinative, for as argued by the Court, innumerable agreements, including the lease on the insurance company's offices, affect cost. This contract, however, has more than a mere incidental connection to the policy and premium. It is a direct arrangement to provide the very goods and services whose purchase is the risk assumed in the insurance policy. It is therefore integral to the insurer's rate-setting process, as the correlation between rates and drug prices in a drug-benefits policy is necessarily high. Moreover, the ability of state insurance commissioners to regulate rates, an important concern of the Act, is measurably enhanced by their ability to control the formulas by which insurers reimburse providers.[18] The same is true of state efforts to ensure that plans are financially reliable. See Travelers Ins. 8 n. 9 (CA 197) This close nexus between the Pharmacy Agreements and both the rates and fiscal reliability of Blue Shield's plan speaks strongly for their inclusion within the "business of insurance." See generally Proctor v. State *251 Farm Mutual Automobile Ins. at 2-272, -270. Another reason, in addition to this nexus to basic insurance elements, also supports the conclusion that fixed-price provider agreements are the "business of insurance." Such agreements themselves perform an important insurance function. It may be true, as the Court contends, that conventional notions of insurance focus on the underwriting of risk. But they also include efforts to reduce the unpredictable aspects of the risks assumed. Traditional plans achieve this end by setting ceilings on cash payments or utilizing large deductibles. R. Mehr & E. Cammack, Principles of Insurance 222 (6th ed. 1976). Even if the insurer cannot know how often a policyholder might become ill, it can know the extent of its exposure in the event of illness. The actuarial uncertainty, therefore, is greatly reduced. A fixed-price provider agreement attempts to reach the same result by contracting in advance for a price, rather than agreeing to pay as the market fluctuates. The agreement on price at least minimizes the variance of the "payoff" variable, even if the probability of its occurrence remains an unknown. Indeed, if examined carefully, this function comes within the latter half of the definition of "underwriting" offered by the Solicitor General: "spread[ing] risk more widely or reduc[ing] the role of chance events." See n. Of course, the Pharmacy Agreements in this case do not totally control "the role of chance" in drug prices since acquisition costs may fluctuate even if "markup" is fixed, but they are at least an attempt to reduce the role of chance to manageable proportions.[19] Moreover, a service-benefit plan which "pay[s] the cost whatever it might be," as hypothesized by the Court of *252 556 F.2d, at 181, would run grave risks of bankruptcy. Since it would expose the insurer to unknown liability, it would measurably increase the probability that an incorrect assessment of exposure would occur. This could lead to a failure to cover actual losses with premiums. Respondents argue that this fiscal-reliability problem could be solved by placing a dollar limit on benefits. But such a plan would be almost indistinguishable from a cash-indemnity policy. It would not be the full-service-regardless-of-price plan for which the policyholders bargained.[20] The Pharmacy Agreements are thus "other activities of insurance companies relate[d] so closely to their status as reliable insurers that they too must be placed in the same class." V The process of deciding what is and is not the "business of insurance" is inherently a case-by-case problem. It is true that the conclusion advocated here carries with it line-drawing problems. That is necessarily so once the provider-agreement line is crossed by holding some to be within the "business." But that is a line which history and logic compel me to cross. I would hold that the concept of a provider agreement for benefits promised in the policy is within the "business of insurance" because some form of provider agreement is necessary to fulfill the obligations of a service-benefit policy. I would hold that these provider agreements, Blue Shield's Pharmacy Agreements, are protected because they (1) directly obtain the very benefits promised in the policy[21] and therefore *25 directly affect rates, cost, and insurer reliability, and (2) themselves constitute a critical element of risk "prediction."[22] The conclusion that these kinds of agreements are the "business of insurance" is that reached by every Court of except the Court of in this case.[2] I would not suggest, however, that all provider agreements come within the McCarran-Ferguson Act proviso. Given the facts found by the District Court upon summary judgment, this is not a case where the petitioner pharmacies themselves conspired to exclude others from the market, and either pressured Blue Shield to go along, or were voluntarily joined by the insurer. See also Government Brief 1 n. 6. Such an agreement among pharmacies, itself neither necessary nor related to the insurer's effort to satisfy its obligations to its policyholders, would be outside the "business of insurance." An insurance company cannot immunize an illegal conspiracy by joining it. Cf. 17 U.S. 41, 51-52 *254 (194). Moreover, since in this case the Blue Shield plan was offered to all San Antonio pharmacies and was in fact agreed to by at least I am not called upon to decide whether an exclusive arrangement with a single provider would be so tenuously related to providing policyholder benefits as to be beyond the exemption's protection. See generally Proctor v. State Farm Mutual Automobile Ins. 182 U. S. App. D. C., at 270 n. n.[24] Finally, the conclusion that Blue Shield's Pharmacy Agreements should be held within the "business of insurance"[25]*255 does not alone establish whether the agreements enjoy an exemption from the antitrust laws. To be entitled to an exemption, petitioners still would have to demonstrate that the transactions are in fact truly regulated by the State, 15 U.S. C. (b), and that they do not fall within the "boycott" exception of 15 U.S. C. 1 (b). The District Court held for petitioners on both issues. Neither issue was reached by the Court of however, in light of its holding that the contracts were not the "business of insurance." Accordingly, *256 I would reverse the judgment of the Court of and remand the case for further proceedings.[26] |
Justice O'Connor | majority | false | Bowsher v. Merck & Co. | 1983-04-19T00:00:00 | null | https://www.courtlistener.com/opinion/110905/bowsher-v-merck-co/ | https://www.courtlistener.com/api/rest/v3/clusters/110905/ | 1,983 | 1982-061 | 2 | 7 | 2 | The issue before the Court is the scope of the authority of the Comptroller General of the United States to examine the records of a private contractor with whom the Government has entered into fixed-price[1] negotiated contracts. We conclude that, under the circumstances presented in this action, the Comptroller General may inspect the contractor's records of direct costs, but not records of indirect costs.
I
In 1973 Merck & Co., Inc. (Merck), entered into three contracts with the Defense Supply Agency of the Department of Defense and one contract with the Veterans' Administration for the sale of pharmaceutical products to the Government. All four contracts were negotiated, rather than awarded after formal advertising.[2] The pharmaceutical products supplied *827 under each contract were standard commercial products sold by Merck in substantial quantities to the general public. App. 41a. The price term proposed by Merck for each contract was based on the catalog price at which Merck sold the item to the general public or was otherwise determined by adequate competition. Before the award of each of the contracts at the fixed price proposed by Merck, there was no actual negotiation of price, and the Government contracting officers did not request Merck to submit cost data in connection with any of the four contracts.
As required by 10 U.S. C. § 2313(b) and 65 Stat. 700, 41 U.S. C. § 254(c),[3] each contract contained a standard access-to-records *828 clause granting the Comptroller General the right to examine any directly pertinent records involving transactions related to the contract. Relying on these clauses, in August 1974 the Comptroller General issued a formal demand to Merck for access to the following:
"all books, documents, papers, and other records directly pertinent to the contracts, which include, but are not limited to (1) records of experienced costs including costs of direct materials, direct labor, overhead, and other pertinent corporate costs, (2) support for prices charged to the Government, and (3) such other information as may be necessary for use to review the reasonableness of the contract prices and the adequacy of the protection afforded the Government's interests." App. 18a.[4]
*829 Merck refused to comply with the Comptroller General's request and commenced this action in the United States District Court for the District of Columbia, seeking a declaratory judgment that the Comptroller General's access demand exceeded his statutory authority.[5] The United States intervened and counterclaimed to enforce the Comptroller General's demand.
The District Court granted partial summary judgment for each party. Rejecting Merck's argument that cost records are not "directly pertinent" to the fixed-price contracts that were the predicate of the General Accounting Office (GAO) demand, the court permitted access to all records
"directly pertaining to the pricing and cost of producing the items furnished by . . . Merck under the . . . contracts . . . including manufacturing costs (including raw and packaging materials, labor and fringe benefits, quality control and supervision), manufacturing overhead (including plant administration, production planning, warehousing, utilities and security), royalty expenses, *830 and delivery costs." App. to Pet. for Cert. in No. 81-1273, p. 39a.
The court barred access, however, to records "with respect to research and development, marketing and promotion, distribution, and administration (except to the extent such date may be included in the cost items listed above)." Id., at 40a. In a brief per curiam opinion, the United States Court of Appeals for the District of Columbia Circuit affirmed. Merck & Co. v. Staats, 214 U. S. App. D. C. 418, 665 F.2d 1236 (1981).
Both parties sought certiorari. In No. 81-1273, the United States petitioned for review of the Court of Appeals' determination that records of Merck's indirect costs are not subject to examination by the Comptroller General. In No. 81-1472, Merck challenges the determination that records of its direct costs are "directly pertinent" to the contracts in question and are therefore subject to examination. Merck also contends that access to its cost records is barred because the Comptroller General's access demand was not made for a congressionally authorized purpose. We granted certiorari on the petitions of both parties, 456 U.S. 925 (1982), and now affirm.
II
As with any issue of statutory construction,[6] we " `must begin with the language of the statute itself.' " Bread Political Action Committee v. FEC, 455 U.S. 577, 580 (1982), quoting Dawson Chemical Co. v. Rohm & Haas Co., 448 U.S. 176, *831 187 (1980). The focal point of controversy is the meaning of the statutory phrase "directly pertain to and involve transactions relating to the contract." See n. 3, supra. It is plain from the face of the provisions that these are words of limitation designed to restrict the class of records to which access is permitted by requiring some close connection between the type of records sought and the particular contract.[7]
The legislative history of the access provisions underscores what the language reflects: the intention of Congress to limit to some degree the Comptroller General's access powers. As originally introduced, the bill now codified as 10 U.S. C. § 2313(b) and 41 U.S. C. § 254(c) provided access to "pertinent" records "involving transactions related to" the contract. See 97 Cong. Rec. 13371 (1951).[8] Representative *832 Hoffman opposed the original bill on the ground that it permitted "unnecessary snooping expeditions" and allowed the GAO to "go into everybody's business and look it over if they just wanted to take a look at it." Id., at 13373. He therefore offered a floor amendment to insert the word "directly" before the word "pertinent," stating that the purpose of the amendment "is to limit the `snooping' that may be carried on under this bill." Id., at 13377. The sponsor of the original bill, Representative Hardy, did not oppose the amendment, and the amendment passed without debate or discussion.
The passage of the Hoffman amendment clearly reveals that Congress did not want unrestricted "snooping" by the Comptroller General into the business records of a private contractor. The Government nevertheless attempts to discount the significance of Congress' addition of the word "directly." Based on the lack of opposition to the limiting amendment by the bill's sponsor and the lack of debate, the Government argues that the Hoffman modification did not significantly alter the scope of the Hardy bill. We cannot agree. The only explanation in the legislative history of the meaning and purpose of the amendment is that of Representative Hoffman. His statement, which, as the explanation of the sponsor of the language, is an "authoritative guide to the statute's construction," North Haven Board of Education v. *833 Bell, 456 U.S. 512, 527 (1982), expressly indicates that the intent of the amendment was to curtail the scope of investigation authorized under the bill. Although, as the Government emphasizes, Representative Hoffman did not have the votes to defeat the bill in its entirety, he nevertheless had the votes to circumscribe the inquiry that the Comptroller General was authorized to undertake. Moreover, to accept the Government's contention that the amendment had no substantive effect would contradict the settled principle of statutory construction that we must give effect, if possible, to every word of the statute. Fidelity Federal Savings & Loan Assn. v. De la Cuesta, 458 U.S. 141, 163 (1982). Therefore, in our attempt to give meaning to the words "directly pertinent," we must be mindful of Congress' aim to protect contractors from broad-ranging governmental intrusion into their private business affairs.
It does not follow, however, that our interpretation of the language added by the Hoffman amendment must be guided solely by that policy, for it is expressive of only one of the aims embraced by Congress in enacting the access-to-records provisions. The legislative history also reveals that Congress sought, in granting the GAO this access authority, to equip that agency with a tool to detect fraud, waste, inefficiency, and extravagance in Government contracting generally. Representative Hardy, the sponsor of the legislation, explained that the two major purposes of the bill were "to give the Comptroller General the proper tools to do the job the Congress has instructed him to do . . . and . . . to provide a deterrent to improprieties and wastefulness in the negotiation of contracts." 97 Cong. Rec. 13198 (1951). With regard to the former purpose, it is clear that Congress envisioned use of the access authority as an adjunct to the Comptroller General's statutory responsibility to "investigate. . . all matters relating to the receipt, disbursement, and application of public funds" and to "make recommendations looking to greater economy or efficiency in public *834 expenditures." 31 U.S. C. § 53(a). See also 31 U.S. C. §§ 60, 65(a).[9] Obviously, broad access to cost records would enhance the GAO's ability to evaluate the reasonableness of the price charged the Government and to identify areas of waste and inefficiency in procurement.
Because of the lack of debate or discussion of the Hoffman amendment, however, we do not have any indication in the legislative history, nor indeed in the language of the statute itself, of the scope of access authority left to the GAO after the restrictive words were added to the bill. In defining the degree of limitation, we thus traverse uncharted seas guided only by the two general statutory purposes reflected in the legislative history. Consequently, our task in construing the statutes as they apply in this action is to give effect to both of these congressional aims. The tension between these goals is apparent. For some industries and some types of contracts, including perhaps those at issue here, neither objective *835 can be achieved fully without sacrificing the other.[10] Given these dual, conflicting aims, we must balance the public interest served by full GAO investigations against the private interest in freedom from officious governmental intermeddling in the contractor's private business affairs.
*836 III
A
The Government contends that the Court of Appeals erred in holding that records of Merck's indirect costs[11] are not "directly pertinent" to the contracts in question. In so arguing, the Government maintains that Merck's indirect costs are directly pertinent to the fixed-price contracts because Merck uses payments made by the Government under these contracts to defray indirect expenses. Thus, the Government would have us define as "directly pertinent" the records of any costs defrayed from commingled general revenues that include Government payments under the contract.
We cannot accept this interpretation of the statute, however, for it completely eviscerates the congressional goal of protecting the privacy of the contractor's business records. Under the Government's proposed definition, records of expenditures to purchase raw materials for the manufacture of an entirely different product than that sold under the Government contract or to invest in the stock of another corporation would be subject to inspection by the Comptroller General. Hence, the Government's interpretation would permit far-ranging governmental scrutiny of a contractor's business records of nongovernmental transactions completely unrelated to either the contract underlying the access demand or the product procured under that contract. Indeed, carried to its logical extreme, the argument would dictate that few, if any, of a private contractor's business records would be immune from GAO scrutiny. In short, the Government's proposed definition of the statutory language admits of no doctrinal limitation, effectively reading the Hoffman limiting language and its "antisnooping" policy out of the statute.
*837 B
Nor are we persuaded by the Government's argument that the GAO's consistent and longstanding interpretation of its authority under the access-to-records statutes supports the view that indirect cost records are subject to examination under the fixed-price contracts in question here. Even if that interpretation could be characterized as consistent, it would not be entitled to deference, for, as we have noted above, it is inconsistent with the statutory language. See Southeastern Community College v. Davis, 442 U.S. 397, 411 (1979).
Moreover, to characterize the GAO's current sweeping view of its access authority as "consistent" would be generous. There is significant evidence indicating that in the past the GAO itself has acknowledged a deficiency in its statutory authority to examine indirect cost records.[12] For example, *838 in a ruling of particular significance for the facts of this case, the Comptroller General determined in 1967 that the access provisions do not confer upon the GAO the right to examine records relating to a contractor's nongovernmental business, even when such review is necessary to determine whether a catalog-priced item was actually sold in substantial quantities to the general public. App. 162a-163a. Moreover, in late 1969, the GAO prepared a memorandum for Congress in connection with congressional consideration of a proposed grant of additional access authority to the GAO to pursue a study of contractor profits in the defense industry. In the memorandum, the GAO informed Congress that its authority under the 1951 access provisions did not extend to review of records of a contractor's nongovernmental business and that additional access authority was therefore necessary to conduct a profit study. 115 Cong. Rec. 25800-25801 (1969) (reprinting GAO Memorandum on the Adequacy of the Legal Authority of the Comptroller General to Conduct a Comprehensive Study of Profitability in Defense Contracting). Finally, a 1970 internal memorandum also reveals the GAO's belief that amendment of the 1951 access statutes would be necessary to give it the power to examine records of indirect costs. App. 160a-161a.[13]
The only statements by the GAO directly supportive of its position here occur in testimony before a congressional Subcommittee *839 in 1963 regarding the GAO's litigation of the scope of its access authority in Hewlett-Packard Co. v. United States, 385 F.2d 1013 (CA9 1967), cert. denied, 390 U.S. 988 (1968).[14] In light of the GAO's litigation posture during these hearings, as well as the contrary expressions of GAO opinion noted above, this testimony cannot provide persuasive evidence of the GAO's consistent interpretation or practice.
IV
To summarize, the Government has failed to offer a definition of "directly pertinent" that would give any effect to the limiting purpose of that language. In our view, the appropriate accommodation of the competing goals reflected in the legislative history counsels us to draw the line precisely *840 where both lower courts have drawn it. Thus, under the four fixed-price contracts in question, the Comptroller General should be permitted access to records of direct costs.[15] He should be barred, however, from inspecting records of costs incurred in the areas of research and development, marketing and promotion, distribution, and administration, except to the extent the contractor has allocated these costs as attributable to the particular contract.[16]
Direct costs certainly pertain directly to even a fixed-price contract, for direct costs are, by definition, readily identifiable as attributable to the specific product supplied under the contract. Consequently, as a rational businessman, the contractor will have some regard for these costs in setting even a catalog price in order to avoid a loss on the product. Because these costs therefore have a very direct influence on the price charged the Government, the GAO would need to *841 examine records of these costs to determine whether the contractor is making an excessively high profit or the Government is getting a "fair deal" under the contract. Presumably, indirect costs also influence in some manner the setting of a catalog price, although to what extent is unclear, given the somewhat arbitrary accounting allocations that must be made to determine what portion of indirect costs may be attributed to a specific product. Nevertheless, the degree of intrusion into the contractor's private business affairs occasioned by GAO scrutiny of indirect cost records is far greater, particularly where pure fixed-price contracts are involved. Such an inspection would entail exposure to the GAO of many of the contractor's nongovernmental transactions.[17] We therefore conclude that the appropriate balance of public and private interests in this situation weighs in favor of access to direct cost records but against access to Merck's indirect cost records.[18] Our decision in this regard is *842 in accord with that of the majority of the Courts of Appeals to have considered this issue.[19]
The Government objects strenuously that barring such access impermissibly constrains the GAO in its efforts to improve the procurement process. In an industry in which indirect costs represent such a large proportion of total costs,[20] access to records of those costs is critical to an understanding of the industry with which the Government is dealing and to an assessment of the fairness of the contract price and the advisability of continued adherence to the negotiated procurement methods employed under those contracts.[21]
As we have already noted, however, in adopting the Hoffman amendment, Congress was apparently willing to forgo the benefits that might be gained from permitting the GAO broad access to the contractor's business records in order to protect those contractors from far-reaching governmental scrutiny of their nongovernmental affairs. By inclusion of that language, Congress injected into the determination of which records are accessible considerations besides the Government's *843 need for the information. Thus, any impediment that our holding places in the path of the GAO's power to investigate fully Government contracts is one that Congress chose to adopt,[22] and any arguments that this situation should be changed must be addressed to Congress, not the courts.[23]
V
We address briefly Merck's contention that there is yet another independent ground upon which the Comptroller General should be denied access to any of its cost records. Merck argues that the GAO is not entitled to examine these records because the access demand was not made for a congressionally authorized purpose. Specifically, Merck contends that the access-to-records statutes do not permit the Comptroller General to request records for the purpose of either conducting an economic study of the pharmaceutical industry or securing information desired by individual Members of Congress.
Much of what we have already said provides an answer to this contention. The legislative history reveals that Congress granted the GAO authority to examine directly pertinent records under individual procurement contracts in order to assess the reasonableness of the prices paid by the Government and to detect inefficiency and wastefulness. Given this authorized purpose, there is no reason to conclude that the GAO may not compile the information that it may lawfully *844 obtain, within the statutory limits outlined above, from an investigation of individual contracts in order to arrive at a picture of the pharmaceutical industry generally.[24] Moreover, the fact that two Senators encouraged the GAO to use its lawful authority to the fullest extent possible is irrelevant. The GAO is an independent agency within the Legislative Branch that exists in large part to serve the needs of Congress. If the records sought by the GAO are within the scope of the access-to-records provisions, the fact that the Comptroller General's request had its origin in the requests of Congressmen or that the GAO reported the data to Congress does not vitiate its authority.
VI
Because of the GAO's mandate to detect fraud, waste, inefficiency, and extravagance through full audits of Government contracts, we cannot accept Merck's view that the only records directly pertinent to the four fixed-price contracts at issue are those necessary to verify that Merck actually had an established catalog price for the item procured, that it sold the items in substantial quantities to the general public at the catalog price, that it delivered the product specified, and that it received from the Government no more than the amount due under the contract. On the other hand, given the policy of protecting the privacy of contractors' business records also expressed in the statutory language and legislative history, *845A neither can we accept the Government's contention that it must be permitted access to all of Merck's cost records. Accordingly, we affirm the judgment below.
It is so ordered.
*845B JUSTICE WHITE, with whom JUSTICE MARSHALL joins, concurring in part and dissenting in part.
I join Part V of the Court's opinion, and I concur in the remainder to the extent it upholds the GAO's right to inspect Merck's "direct" cost records.[1] I dissent to the extent the Court refuses to allow the GAO access to any of Merck's "indirect" cost records.
The statutory provisions at issue, 10 U.S. C. § 2313(b) and 41 U.S. C. § 254(c), clearly were intended to allow the GAO the right to a reasonable degree of access to contractors' records needed to determine whether prices charged to the Government were excessive. Of course, this right was not intended to be unlimited; the Court correctly identifies a congressional intent to protect private contractors from "officious governmental intermeddling." Ante, at 835.
*846 Unfortunately, for the conceded purpose of creating a bright-line test, ante, at 841, n. 18, the Court goes astray by adopting a rule that flatly bars the GAO from access to all indirect cost records pertaining to most fixed-price contracts, regardless of how urgent the need for them might be. The Court frankly admits that its rule may deny the GAO access to cost records critical to an assessment of the fairness of the contract price, thereby impeding the GAO's ability to protect the public against wasteful Government expenditures. Ante, at 842-843. These undesirable consequences could be avoided, without sacrificing the contractors' right to be free from unwarranted GAO "snooping," by holding the Government to the burden of showing that requested records likely had a direct and substantial impact on the price charged to the Government and thus are "directly pertinent" to the contract.
I
In each of the four contracts involved here, the United States agreed to purchase certain pharmaceutical products from Merck at a fixed price. In each instance, Merck proposed a contract price based on its catalog or "market" price, and the Government contracting officer accepted the proposal without any "haggling" or other negotiation as to price. Each of the contracts contains the statutorily mandated provision allowing the GAO the right to inspect Merck's books and records that are "directly pertinent" to the contract.
The GAO now seeks to examine those Merck records that indicate the cost to Merck of the goods sold to the Government. The GAO deems such an examination necessary to carry out its statutory duty to "investigate . . . all matters relating to the receipt, disbursement, and application of public funds," and to "make recommendations looking to greater economy or efficiency in public expenditures." 31 U.S. C. § 53(a).
By inspecting Merck's cost records, the GAO hopes to be able to estimate whether the contract price paid by the Government *847 was a fair one. The GAO has confirmed by experience the common-sense observation that the mere "fact that a product is listed in a manufacturer's catalog and offered to any customer is no assurance that . . . the standard catalog price is reasonable."[2] If the GAO's inspection were to reveal that Merck's prices were unreasonably high, the GAO presumably would recommend to the contracting agencies that they "negotiate prices more carefully or . . . obtain greater competition in future similar procurements,"[3] or that they take other action "looking to greater economy or efficiency," 31 U.S. C. § 53(a), in future expenditures.
The Court concludes, however, that, despite the inclusion of the access-to-records provision in the contracts, the GAO has no right to inspect any of Merck's indirect cost records to determine how much it cost Merck to produce the products sold to the Government. This holding exalts the contractors' privacy interest to such a degree that it displaces the GAO's right to inspect records unquestionably needed for an accurate determination of the fairness of the contract price. Congress did not intend this order of priority of interests. What Congress did intend was that contractors be spared the burden of unwarranted intrusions. Congress did not want the GAO to be irresponsibly "snooping" into records lacking relevance to the question whether the Government paid a fair price for the products it purchased. But Congress did not wish to deny the GAO access to records legitimately needed to detect waste, extravagance, and ineffective procurement. To the extent the GAO can prove that some or all of a contractor's indirect cost records fall into this latter category, the GAO's right of access should be sustained.
*848 II
I begin with the language of the statute. Jackson Transit Authority v. Transit Union, 457 U.S. 15, 23 (1982); Touche Ross & Co. v. Redington, 442 U.S. 560, 568 (1979). The legislation at issue requires unadvertised Government contracts to include a clause allowing the GAO to examine any of the contractor's books, documents, papers, or records "that directly pertain to, and involve transactions relating to, the contract . . . ." 10 U.S. C. § 2313(b). See 41 U.S. C. § 254(c).
" `[I]t is hard to imagine anything more directly related to a contract than the cost of producing the items covered by it or the matters going into the makeup of the price.' " Eli Lilly & Co. v. Staats, 574 F.2d 904, 913 (CA7), cert. denied, 439 U.S. 959 (1978). Accord, SmithKline Corp. v. Staats, 668 F.2d 201, 208-209 (CA3 1981), cert. pending, Nos. 81-2082, 81-2268; Hewlett-Packard Co. v. United States, 385 F.2d 1013, 1016 (CA9 1967), cert. denied, 390 U.S. 988 (1968). The Court does not contend otherwise. Indeed, all the Court has to say about the literal statutory wording is that it requires "some close connection between the type of records sought and the particular contract." Ante, at 831. But there is, of course, no reason why the records of all indirect costs inherently lack the requisite "close connection." As the Court fully recognizes, ante, at 842-843, in some instances indirect costs have a critical bearing on the makeup of the contract price. The Government should at least be allowed an opportunity to prove that such is the case, and, to the extent it succeeds in this endeavor, the GAO should be allowed access.
III
Even if, contrary to my belief, the statutory language is somehow regarded as ambiguous, resort to the legislative history further refutes the Court's position. The legislative history of the access-to-records provisions is relatively brief and to the point. It demonstrates beyond doubt that Congress *849 authorized the GAO to examine all of a contractor's books legitimately needed to evaluate Government procurement techniques by ascertaining whether the Government had paid a reasonable price for the contractor's goods or services.
Representative Hardy, the bill's sponsor, indicated that the bill was intended to improve the adequacy of Government procurement techniques in various ways. He expressly remarked:
"The major purposes of this bill are twofold: One, to give the Comptroller General the proper tools to do the job the Congress has instructed him to do; and, two, to provide a deterrent to improprieties and wastefulness in the negotiation of contracts." 97 Cong. Rec. 13198 (1951).
As noted supra, at 846, Congress has instructed the GAO to "investigate . . . all matters relating to the receipt, disbursement, and application of public funds," and to "make recommendations looking to greater economy or efficiency in public expenditures." 31 U.S. C. § 53(a).[4]
Representative Hardy early explained to his colleagues that normal procurement procedures called for competitive bidding but that procurement by negotiation was sometimes necessary. In the latter context, where there is no competitive bidding to "operat[e] as a brake on the price which a contractor can demand from the Government," Representative Hardy saw the need to establish "every reasonable safeguard against waste and extravagance in the spending" of Government funds. 97 Cong. Rec., supra, at 13198. He felt that, no matter how "conscientious and honest" the Government representatives might be, the contractor's representatives would, in the great majority of cases, have a tremendous advantage *850 from the standpoint of both training and experience. Ibid. Thus, there was "every chance in the world that the Government [would] come out on the short end of the deal," and Representative Hardy deemed it necessary to "at least enable the [GAO] to check the transaction, both from the Government records and the contractors' books." Ibid.
The debate continued two days later when Representative Hardy proposed an amendment that would have allowed agency heads the discretion to omit the access-to-records clause from contracts with foreign contractors, id., at 13371, and Representative Harvey proposed an amendment that would have exempted "a manufacturer or processor who is a supplier of material to a primary contractor and who is not a subcontractor" from the scope of the bill's coverage. Id., at 13376. Both of these proposals were ultimately defeated, but, during the lively debate on the proposed amendments, several Members of Congress stated without contradiction that the bill would allow the GAO extremely broad authority to examine records. For example, Representative Harvey asked whether, if the bill became law, a subcontractor of a primary Government contractor "would be subject to having all of his books opened up for inspection by Government officials." Id., at 13372 (emphasis added). Representative Hardy replied that it would, unless the subcontractor only supplied some "casual item" in connection with the performance of the contract. Ibid. Based on this understanding, Representative Harvey later argued that his limiting amendment was needed, because otherwise "every manufacturer. . . of . . . goods that eventually find their way into defense production . . . is going to have to supply all the answers to the GAO on everything he manufactures." Id., at 13376. "[E]very section of his books will have to come under the complete scrutiny of the GAO." Ibid. In response, Representative Hardy did not dispute this characterization of the scope of the GAO's authority, but he nevertheless opposed the Harvey amendment, because it "would make it impossible *851 frequently to obtain information which would be vital in the study of a contract." Ibid.
Representative Hoffman, a strong opponent of the bill, several times during the debate observed that the "GAO under this bill can go into the books of [contractors] and ask and get from them anything and everything they want." Id., at 13373. He indicated his belief that the bill would allow the GAO "to snoop into [a contractor's] books and find out what [the goods or services] cos[t] or what will be a fair price or what profit we make." Ibid. See also id., at 13375, 13377. Standing alone, of course, the statements of an opponent of the bill, such as Representative Hoffman, would not carry much weight,[5] but here, even though all comments pro and con were made in the midst of a free-wheeling debate, the proponent of the bill, Representative Hardy, in no way took issue with Representative Hoffman's view of the scope of the GAO's authority. Representative Hardy's essential response was that it was necessary to require contractors to afford the GAO this broad authority, and that Representative Hoffman's fears of excessive GAO "snooping" were groundless, because the GAO would have neither the inclination nor the manpower to examine the records of every individual supplier. Id., at 13376, 13377.
The original Hardy bill required the inclusion, in negotiated contracts, of a clause allowing the GAO the right to examine any records that were "pertinent" to the contract. At the very end of the debate, Representative Hoffman proposed the amendment that added the word "directly" before the word "pertinent." Id., at 13377. Representative Hoffman explained that he had discussed his amendment with Representative Hardy, the bill's sponsor, and that, although the amendment was "not all that it should be," it was the *852 most that Representative Hardy would agree to. Ibid.[6] Representative Hoffman then stated that the purpose of his amendment was "to limit the `snooping' that may be carried on under this bill which we do not have the votes to defeat." Ibid. At that point, Representative Hardy remarked that he had no objection to the amendment, and it was accepted without further discussion. Ibid.[7]
In light of Representative Hardy's consistent position throughout the debate, it cannot plausibly be argued that he agreed to the Hoffman amendment with the understanding that it effected a drastic reduction in the scope of the bill's coverage or purpose. As outlined above, Representative Hardy continuously spoke of the need to provide a mechanism to combat waste and extravagance in federal procurement, and he vigorously and successfully opposed the Harvey amendment, which would have significantly limited the bill's *853 scope. His acceptance of the addition of the word "directly" may have been largely a sop to the bill's opponents. The most that can be said is that Representative Hardy accepted the amendment to allay concerns that the legislation "would let the GAO go into everybody's business and look it over if they just wanted to take a look at it." Id., at 13373 (Rep. Hoffman). The amendment gave assurance that the bill would not be used as a basis for inspection of books and records having no substantial connection with Government procurement. But the amendment definitely was not intended to bar the GAO's access to records legitimately needed to assess the reasonableness of prices charged to the Government, and thereby to protect the Government against waste, excessive prices, and ineffective procurement.[8]
IV
Despite the plain statutory language and legislative history, the Court refuses to uphold the GAO's right of access to all cost records that are essential to an accurate determination of whether the Government wasted money by entering into these contracts. Adopting the so-called "Bristol test,"[9] the Court affirms a judgment that limits the GAO's access to records pertaining to a contractor's
"manufacturing costs (including raw and packaging materials, labor and fringe benefits, quality control and supervision), manufacturing overhead (including plant *854 administration, production planning, warehousing, utilities and security), royalty expenses, and delivery costs."[10]
The Bristol test excludes
"books, documents, papers, or records with respect to research and development, marketing and promotion, distribution and administration (except to the extent such data may be included in the cost items listed above)."[11]
The Court describes this test, perhaps inaccurately,[12] as being based on a "direct costs v. indirect costs" or an "allocated costs v. unallocated costs" dichotomy.
The courts that have adopted this test have no doubt been influenced by a need to come up with some form of reasonable limitation on the broad access demand the GAO has made. The GAO claims it has the right to examine records pertaining to every cost "defrayed from commingled general revenues that include the Government's payments under the contract." I agree that the GAO's demand is somewhat over-broad; the Court correctly observes, ante, at 836, that it would require Merck to allow inspection of cost records totally unrelated to the Government contracts, such as records of expenditures for raw materials used to manufacture products other than those sold to the Government under the contracts.[13] However, I am not convinced that the proper conclusion is to limit the GAO to the cost records allowable under the Bristol test.
The Bristol court adopted its standard solely on the basis of the cost records that the contractor was willing to disclose *855 to the GAO. The court felt that the contractor's offer "reflected a responsible and reasonable effort to distinguish `directly pertinent' matter within the meaning of the access to records clause."[14] The court thus accepted the contractor's contention that the cost records it was not willing to disclose had "only the most general relation, if any, to the prices charged."[15]
Although cost records having, at most, only an insubstantial relation to the price charged are not "directly pertinent" to the contract, it is apparent that many of the records deemed unexaminable under Bristol relate to costs that may have had a critical bearing on the prices charged, and that would be of central importance to a GAO inquiry into the fairness of these prices. In the pharmaceutical industry, it has been estimated that "direct" or "allocated" costs constitute only about nine percent of the sale price of individual products. The so-called "indirect" or "unallocated" costs primarily research and development, advertising and other promotion, general administrative expenses, and taxes and profit are much larger and economically more significant.[16] Yet, under the Bristol test, the GAO is denied access to all records in this category, thus making it impossible for the GAO to make an accurate assessment of the fairness of the prices and thus the adequacy of the Government's procurement technique.[17]
*856 In my view, the correct rule in a case of this nature is that any books or records that bear directly on the question whether the Government paid a fair price for the goods or services it purchased are "directly pertinent" to the contract of purchase. Under this test, for example, the cost records of an advertising campaign to promote only the particular products sold to the Government, or a research project designed specifically to develop or improve these products, would clearly be "directly pertinent."[18] On the other hand, *857 records of advertising campaigns and research projects involving only unrelated products would lack the requisite degree of pertinence. Of course, in many instances a commercial advertisement or a research project will be designed to promote or develop both products sold to the Government and other, unrelated products. With respect to cost records of efforts such as these, there might be some close questions as to whether such records are "directly pertinent" to the Government contracts. If, however, the GAO could bear the burden of proving that the records are of costs that likely had a direct and substantial impact on the price charged to the Government under the contract, I would allow the GAO access to the records.
V
The inquiry does not necessarily come to an end once the GAO establishes that it has a statutory and contractual right to inspect particular records. In addition to the statutory *858 "directly pertinent" limitation, the GAO's right of inspection is further circumscribed, and the contractors' right to privacy is further protected, by constitutional standards, such as the Fourth Amendment reasonableness requirement.
Where, as here, the GAO wishes to see a contractor's records and the contractor declines to accede voluntarily to a GAO request, the GAO must issue an administrative subpoena. If the contractor refuses to comply with the subpoena, the GAO must apply to a district court for enforcement of the subpoena. 31 U.S. C. § 54(c) (1976 ed., Supp. V).[19]
Once in the district court, a contractor such as Merck has the benefit of all of this Court's jurisprudence limiting the bounds of an agency's right to demand the production of a private entity's records. Essentially, in assessing an agency's application for enforcement of an administrative subpoena, we have insisted that the agency's demand be reasonable. The general rule is that "when an administrative agency subpoenas corporate books or records, the Fourth Amendment requires that the subpoena be sufficiently limited in scope, relevant in purpose, and specific in directive so that compliance will not be unduly burdensome." See v. City of Seattle, 387 U.S. 541, 544 (1967). See United States v. Morton Salt Co., 338 U.S. 632, 652-653 (1950); Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 208 (1946); 1 K. Davis, Administrative Law Treatise § 4:15 (2d ed. 1978). This standard is a flexible one that takes into account the extent to *859 which the public interest will be served if the subpoena is enforced. See v. City of Seattle, supra, at 545.
In the present case, Merck has claimed that compliance with the GAO's demand would entail substantial expense and disruption of its operations. This claim is based on evidence that the proposed GAO inspection would require Merck to allow an entire team of GAO auditors to remain on site at Merck for over two years.[20] This, of course, is a matter for first-instance determination by the District Court, but, if the proposed GAO inspection would in fact cause such a high degree of interference with Merck's business, a credible argument could be made that compliance would be unreasonable and unduly burdensome and that the GAO's access should therefore be limited in some way.
VI
In view of the foregoing, I would remand these cases to the District Court, with instructions to uphold the GAO's request for access to Merck's "direct" and "indirect" cost records, but only to the extent that: (1) the records sought by GAO related to costs that likely had a direct and substantial impact on the prices charged to the Government under the contracts; and (2) the request is reasonable in scope and would not unduly burden Merck. To the extent the GAO's demand conforms to these statutory and constitutional standards, Merck should be required to allow the GAO's examination to proceed.[21]
*860 JUSTICE BLACKMUN, with whom JUSTICE STEVENS joins, concurring in part and dissenting in part.
The question before us is the proper construction of the access-to-records clauses required by law to be inserted in various Government contracts. These clauses authorize the Comptroller General to inspect any records that "directly pertain to and involve transactions relating to" the contract into which the clause was inserted. 10 U.S. C. § 2313(b); see 41 U.S. C. § 254(c) (permitting access to "directly pertinent" records "involving transactions related to" the contracts). The Court now holds that these clauses permit access to certain cost records, even when the contract is not cost-based and was negotiated without regard to costs. I cannot agree that cost records are "directly pertinent" to non-cost-based contracts. I therefore dissent insofar as the Court permits access to such records.
The Court correctly begins its analysis by focusing on the language of the statute, noting that it contains "words of limitation designed to restrict the class of records to which access is permitted by requiring some close connection between the type of records sought and the particular contract." Ante, at 831. But after this nod in the direction of the statutory language, the Court, unaccountably in my estimation, fails to examine the type of records sought, the nature of the particular contract, and the closeness of the connection between them. Instead, the Court wanders off to explore the general "aims embraced by Congress in enacting the access-to-records provisions": protecting contractors from governmental *861 intrusion, and equipping the General Accounting Office with a tool to detect fraud and waste in Government contracting. Ante, at 833. Given the "tension" between these "dual, conflicting aims," the Court concludes that it must "balance the public interest served by full GAO investigations against the private interest in freedom from officious governmental intermeddling in the contractor's private business affairs." Ante, at 834-835. The Court then reaches what it deems an "appropriate accommodation of the competing goals reflected in the legislative history" by holding that the Comptroller General may inspect records of "direct costs," but is barred from inspecting other records except to the extent they are allocated to the particular contract. Ante, at 839-840.
I agree that the legislative history reflects conflicting congressional goals, but it appears to me that the necessary "balancing" and "accommodation" of these goals has already been accomplished by Congress. Congress may well have intended to give the GAO a tool to detect fraud and waste and to improve the procurement process, but the particular tool it crafted was a limited one. It gave the Comptroller General access to a narrow category of records: those directly pertinent to the contracts between the Government and its contracting partner.
The Court asserts that Merck's records of direct costs are directly pertinent to its contracts with the Government because such costs "are, by definition, readily identifiable as attributable to the specific product supplied under the contract." Ante, at 840 (emphasis added). Records of indirect costs are not pertinent to Merck's contracts, the Court says, because such records are "completely unrelated to either the contract underlying the access demand or the product procured under that contract." Ante, at 836 (emphasis added). But, as the Court obviously recognizes, there is a difference between records pertinent to the "contracts" by which the Government does its purchasing, and records pertinent to *862 "products" ultimately purchased under those contracts.[1] In interpreting the access-to-records statutes we must "presume that Congress chose its words with . . . care," FBI v. Abramson, 456 U.S. 615, 635 (1982) (O'CONNOR, J., dissenting), and Congress chose to require pertinence to the specific "contract" at issue, not to the "product" procured.
It is a fundamental canon of statutory construction that "unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning." Perrin v. United States, 444 U.S. 37, 42 (1979). In its ordinary meaning, a "contract" is a legally enforceable bargain, formed by mutual consent and supported by consideration. Restatement (Second) of Contracts § 17 (1979); 1 W. Jaeger, Williston on Contracts § 18 (3d ed. 1957). Particular goods and services may be the subject matter of a contract, but the "contract" itself is the agreement between the parties. Nothing in the legislative history suggests that Congress intended any other meaning by its choice of the word "contract."[2] The access-to-records statutes were intended to *863 permit inspection of cost records when the negotiation of a particular contract depended on representations about the contractor's costs, or when the contract price itself varied according to costs. See 97 Cong. Rec. 13198 (1951) (remarks of Rep. Hardy).[3] There is, however, no indication that Congress *864 intended to permit such inspection when costs were not relevant to the contract's negotiation, its terms, or its performance.
Apparently recognizing that cost records are not accessible to the Comptroller General unless they bear some relationship to the actual contracts at issue, the Court asserts that direct cost records are pertinent to non-cost-based contracts because "the contractor will have some regard for these costs in setting even a catalog price in order to avoid a loss on the product." The Court concludes that "these costs therefore have a very direct influence on the price charged the Government." Ante, at 840.[4] But the fact that costs may affect a seller's decision to offer a certain price does not make costs directly pertinent to the contract. A contract, after all, is a meeting of the minds. Many factors may affect one party's willingness to make an offer or the other party's willingness to accept it, but the vast majority of these factors are not mentioned in the bargaining process and play no part in the agreement ultimately reached. An unarticulated motive for one party's assent to a bargain is not pertinent, much less "directly pertinent," to the bargain itself.
Pursuant to the contracts at issue here, Merck has promised to provide various pharmaceutical products and the Government has promised to pay a certain price. The Government's promise was based on Merck's standard catalog price for the products purchased. Information about Merck's production *865 costs was not requested, and neither the contract price nor its performance was tied to costs in any respect. Merck's costs were thus irrelevant to the bargain reached by the parties. Because the Government chose not to make costs an issue during the negotiations, the terms of the contracts would have been the same whether Merck's costs represented 1 percent, 10 percent, or 100 percent of the price the Government agreed to pay. The conclusion seems inescapable that Merck's costs, and consequently its cost records, are not pertinent to the agreements it entered into with the Government.[5]
If the Government is concerned that it may be paying too high a price for pharmaceutical products, it is always free to ask for cost data in connection with any contract it negotiates in the future. Cost records then would be pertinent, because representations about costs would form part of the basis for the bargain between the parties. In this case, however, costs were not relevant to the Government's decision to contract with Merck. Cost records do not become "directly pertinent" to these contracts simply because the Government now wants information that did not concern it at the time of contracting.
I would hold that when the terms of a contract are not tied to costs and the contractor makes no representations about costs during its negotiations with the Government, cost records do not "directly pertain to and involve transactions relating to the contract" and are not subject to inspection by the Comptroller General. The only records "directly pertinent" to such a contract would be those necessary to verify the terms of the contract and the representations upon which *866 the contract was based. In this case, the Comptroller General's access would be limited to those records necessary to verify that Merck actually had an established catalog price for the products it sold, that it sold the products in substantial quantities to the general public at the catalog price, that it delivered the product specified, and that it received from the Government no more than the amount due under the contract. To the extent the Court concludes that the Comptroller General may obtain Merck's cost records as well, I dissent.
| The issue before the Court is the scope of the authority of the Comptroller General of the United States to examine the records of a private contractor with whom the Government has entered into fixed-price[1] negotiated contracts. We conclude that, under the circumstances presented in this action, the Comptroller General may inspect the contractor's records of direct costs, but not records of indirect costs. I In 197 Merck & Co., Inc. (Merck), entered into three contracts with the Defense Supply Agency of the Department of Defense and one contract with the Veterans' Administration for the sale of pharmaceutical products to the Government. All four contracts were negotiated, rather than awarded after formal advertising.[2] The pharmaceutical products supplied *827 under each contract were standard commercial products sold by Merck in substantial quantities to the general public. App. 41a. The price term proposed by Merck for each contract was based on the catalog price at which Merck sold the item to the general public or was otherwise determined by adequate competition. Before the award of each of the contracts at the fixed price proposed by Merck, there was no actual negotiation of price, and the Government contracting officers did not request Merck to submit cost data in connection with any of the four contracts. As required by 10 U.S. C. 21(b) and 41 U.S. C. 254(c),[] each contract contained a standard access-to-records *828 clause granting the Comptroller General the right to examine any directly pertinent records involving transactions related to the contract. Relying on these clauses, in August 1974 the Comptroller General issued a formal demand to Merck for access to the following: "all books, documents, papers, and other records directly pertinent to the contracts, which include, but are not limited to (1) records of experienced costs including costs of direct materials, direct labor, overhead, and other pertinent corporate costs, (2) support for prices charged to the Government, and () such other information as may be necessary for use to review the reasonableness of the contract prices and the adequacy of the protection afforded the Government's interests." App. 18a.[4] *829 Merck refused to comply with the Comptroller General's request and commenced this action in the United States District Court for the District of Columbia, seeking a declaratory judgment that the Comptroller General's access demand exceeded his statutory authority.[5] The United States intervened and counterclaimed to enforce the Comptroller General's demand. The District Court granted partial summary judgment for each party. Rejecting Merck's argument that cost records are not "directly pertinent" to the fixed-price contracts that were the predicate of the General Accounting Office (GAO) demand, the court permitted access to all records "directly pertaining to the pricing and cost of producing the items furnished by Merck under the contracts including manufacturing costs (including raw and packaging materials, labor and fringe benefits, quality control and supervision), manufacturing overhead (including plant administration, production planning, warehousing, utilities and security), royalty expenses, *80 and delivery costs." App. to Pet. for Cert. in No. 81-127, p. 9a. The court barred access, however, to records "with respect to research and development, marketing and promotion, distribution, and administration (except to the extent such date may be included in the cost items listed above)." at 40a. In a brief per curiam opinion, the United States Court of Appeals for the District of Columbia Circuit affirmed. Merck & Both parties sought certiorari. In No. 81-127, the United States petitioned for review of the Court of Appeals' determination that records of Merck's indirect costs are not subject to examination by the Comptroller General. In No. 81-1472, Merck challenges the determination that records of its direct costs are "directly pertinent" to the contracts in question and are therefore subject to examination. Merck also contends that access to its cost records is barred because the Comptroller General's access demand was not made for a congressionally authorized purpose. We granted certiorari on the petitions of both parties, and now affirm. II As with any issue of statutory construction,[6] we " `must begin with the language of the statute itself.' " Bread Political Action quoting Dawson Chemical The focal point of controversy is the meaning of the statutory phrase "directly pertain to and involve transactions relating to the contract." See n. It is plain from the face of the provisions that these are words of limitation designed to restrict the class of records to which access is permitted by requiring some close connection between the type of records sought and the particular contract.[7] The legislative history of the access provisions underscores what the language reflects: the intention of Congress to limit to some degree the Comptroller General's access powers. As originally introduced, the bill now codified as 10 U.S. C. 21(b) and 41 U.S. C. 254(c) provided access to "pertinent" records "involving transactions related to" the contract. See 97 Cong. Rec. 171 (1951).[8] Representative *82 Hoffman opposed the original bill on the ground that it permitted "unnecessary snooping expeditions" and allowed the GAO to "go into everybody's business and look it over if they just wanted to take a look at it." at 17. He therefore offered a floor amendment to insert the word "directly" before the word "pertinent," stating that the purpose of the amendment "is to limit the `snooping' that may be carried on under this bill." at 177. The sponsor of the original bill, Representative Hardy, did not oppose the amendment, and the amendment passed without debate or discussion. The passage of the Hoffman amendment clearly reveals that Congress did not want unrestricted "snooping" by the Comptroller General into the business records of a private contractor. The Government nevertheless attempts to discount the significance of Congress' addition of the word "directly." Based on the lack of opposition to the limiting amendment by the bill's sponsor and the lack of debate, the Government argues that the Hoffman modification did not significantly alter the scope of the Hardy bill. We cannot agree. The only explanation in the legislative history of the meaning and purpose of the amendment is that of Representative Hoffman. His statement, which, as the explanation of the sponsor of the language, is an "authoritative guide to the statute's construction," North Haven Board of Education v. *8 Bell, expressly indicates that the intent of the amendment was to curtail the scope of investigation authorized under the bill. Although, as the Government emphasizes, Representative Hoffman did not have the votes to defeat the bill in its entirety, he nevertheless had the votes to circumscribe the inquiry that the Comptroller General was authorized to undertake. Moreover, to accept the Government's contention that the amendment had no substantive effect would contradict the settled principle of statutory construction that we must give effect, if possible, to every word of the statute. Fidelity Federal Savings & Loan 16 Therefore, in our attempt to give meaning to the words "directly pertinent," we must be mindful of Congress' aim to protect contractors from broad-ranging governmental intrusion into their private business affairs. It does not follow, however, that our interpretation of the language added by the Hoffman amendment must be guided solely by that policy, for it is expressive of only one of the aims embraced by Congress in enacting the access-to-records provisions. The legislative history also reveals that Congress sought, in granting the GAO this access authority, to equip that agency with a tool to detect fraud, waste, inefficiency, and extravagance in Government contracting generally. Representative Hardy, the sponsor of the legislation, explained that the two major purposes of the bill were "to give the Comptroller General the proper tools to do the job the Congress has instructed him to do and to provide a deterrent to improprieties and wastefulness in the negotiation of contracts." 97 Cong. Rec. 1198 (1951). With regard to the former purpose, it is clear that Congress envisioned use of the access authority as an adjunct to the Comptroller General's statutory responsibility to "investigate. all matters relating to the receipt, disbursement, and application of public funds" and to "make recommendations looking to greater economy or efficiency in public *84 expenditures." 1 U.S. C. 5(a). See also 1 U.S. C. 60, 65(a).[9] Obviously, broad access to cost records would enhance the GAO's ability to evaluate the reasonableness of the price charged the Government and to identify areas of waste and inefficiency in procurement. Because of the lack of debate or discussion of the Hoffman amendment, however, we do not have any indication in the legislative history, nor indeed in the language of the statute itself, of the scope of access authority left to the GAO after the restrictive words were added to the bill. In defining the degree of limitation, we thus traverse uncharted seas guided only by the two general statutory purposes reflected in the legislative history. Consequently, our task in construing the statutes as they apply in this action is to give effect to both of these congressional aims. The tension between these goals is apparent. For some industries and some types of contracts, including perhaps those at issue here, neither objective *85 can be achieved fully without sacrificing the other.[10] Given these dual, conflicting aims, we must balance the public interest served by full GAO investigations against the private interest in freedom from officious governmental intermeddling in the contractor's private business affairs. *86 III A The Government contends that the Court of Appeals erred in holding that records of Merck's indirect costs[11] are not "directly pertinent" to the contracts in question. In so arguing, the Government maintains that Merck's indirect costs are directly pertinent to the fixed-price contracts because Merck uses payments made by the Government under these contracts to defray indirect expenses. Thus, the Government would have us define as "directly pertinent" the records of any costs defrayed from commingled general revenues that include Government payments under the contract. We cannot accept this interpretation of the statute, however, for it completely eviscerates the congressional goal of protecting the privacy of the contractor's business records. Under the Government's proposed definition, records of expenditures to purchase raw materials for the manufacture of an entirely different product than that sold under the Government contract or to invest in the stock of another corporation would be subject to inspection by the Comptroller General. Hence, the Government's interpretation would permit far-ranging governmental scrutiny of a contractor's business records of nongovernmental transactions completely unrelated to either the contract underlying the access demand or the product procured under that contract. Indeed, carried to its logical extreme, the argument would dictate that few, if any, of a private contractor's business records would be immune from GAO scrutiny. In short, the Government's proposed definition of the statutory language admits of no doctrinal limitation, effectively reading the Hoffman limiting language and its "antisnooping" policy out of the statute. *87 B Nor are we persuaded by the Government's argument that the GAO's consistent and longstanding interpretation of its authority under the access-to-records statutes supports the view that indirect cost records are subject to examination under the fixed-price contracts in question here. Even if that interpretation could be characterized as consistent, it would not be entitled to deference, for, as we have above, it is inconsistent with the statutory language. See Southeastern Community 4 U.S. 97, Moreover, to characterize the GAO's current sweeping view of its access authority as "consistent" would be generous. There is significant evidence indicating that in the past the GAO itself has acknowledged a deficiency in its statutory authority to examine indirect cost records.[12] For example, *88 in a ruling of particular significance for the facts of this case, the Comptroller General determined in that the access provisions do not confer upon the GAO the right to examine records relating to a contractor's nongovernmental business, even when such review is necessary to determine whether a catalog-priced item was actually sold in substantial quantities to the general public. App. 162a-16a. Moreover, in late 1969, the GAO prepared a memorandum for Congress in connection with congressional consideration of a proposed grant of additional access authority to the GAO to pursue a study of contractor profits in the defense industry. In the memorandum, the GAO informed Congress that its authority under the 1951 access provisions did not extend to review of records of a contractor's nongovernmental business and that additional access authority was therefore necessary to conduct a profit study. 115 Cong. Rec. 20-21 (1969) (reprinting GAO Memorandum on the Adequacy of the Legal Authority of the Comptroller General to Conduct a Comprehensive Study of Profitability in Defense Contracting). Finally, a 1970 internal memorandum also reveals the GAO's belief that amendment of the 1951 access statutes would be necessary to give it the power to examine records of indirect costs. App. 160a-161a.[1] The only statements by the GAO directly supportive of its position here occur in testimony before a congressional Subcommittee *89 in 196 regarding the GAO's litigation of the scope of its access authority in Hewlett-Packard 85 F.2d 101 cert. denied, 90 U.S. 988[14] In light of the GAO's litigation posture during these hearings, as well as the contrary expressions of GAO opinion above, this testimony cannot provide persuasive evidence of the GAO's consistent interpretation or practice. IV To summarize, the Government has failed to offer a definition of "directly pertinent" that would give any effect to the limiting purpose of that language. In our view, the appropriate accommodation of the competing goals reflected in the legislative history counsels us to draw the line precisely *840 where both lower courts have drawn it. Thus, under the four fixed-price contracts in question, the Comptroller General should be permitted access to records of direct costs.[15] He should be barred, however, from inspecting records of costs incurred in the areas of research and development, marketing and promotion, distribution, and administration, except to the extent the contractor has allocated these costs as attributable to the particular contract.[16] Direct costs certainly pertain directly to even a fixed-price contract, for direct costs are, by definition, readily identifiable as attributable to the specific product supplied under the contract. Consequently, as a rational businessman, the contractor will have some regard for these costs in setting even a catalog price in order to avoid a loss on the product. Because these costs therefore have a very direct influence on the price charged the Government, the GAO would need to *841 examine records of these costs to determine whether the contractor is making an excessively high profit or the Government is getting a "fair deal" under the contract. Presumably, indirect costs also influence in some manner the setting of a catalog price, although to what extent is unclear, given the somewhat arbitrary accounting allocations that must be made to determine what portion of indirect costs may be attributed to a specific product. Nevertheless, the degree of intrusion into the contractor's private business affairs occasioned by GAO scrutiny of indirect cost records is far greater, particularly where pure fixed-price contracts are involved. Such an inspection would entail exposure to the GAO of many of the contractor's nongovernmental transactions.[17] We therefore conclude that the appropriate balance of public and private interests in this situation weighs in favor of access to direct cost records but against access to Merck's indirect cost records.[18] Our decision in this regard is *8 in accord with that of the majority of the Courts of Appeals to have considered this issue.[19] The Government objects strenuously that barring such access impermissibly constrains the GAO in its efforts to improve the procurement process. In an industry in which indirect costs represent such a large proportion of total costs,[20] access to records of those costs is critical to an understanding of the industry with which the Government is dealing and to an assessment of the fairness of the contract price and the advisability of continued adherence to the negotiated procurement methods employed under those contracts.[21] As we have already however, in adopting the Hoffman amendment, Congress was apparently willing to forgo the benefits that might be gained from permitting the GAO broad access to the contractor's business records in order to protect those contractors from far-reaching governmental scrutiny of their nongovernmental affairs. By inclusion of that language, Congress injected into the determination of which records are accessible considerations besides the Government's *84 need for the information. Thus, any impediment that our holding places in the path of the GAO's power to investigate fully Government contracts is one that Congress chose to adopt,[22] and any arguments that this situation should be changed must be addressed to Congress, not the courts.[2] V We address briefly Merck's contention that there is yet another independent ground upon which the Comptroller General should be denied access to any of its cost records. Merck argues that the GAO is not entitled to examine these records because the access demand was not made for a congressionally authorized purpose. Specifically, Merck contends that the access-to-records statutes do not permit the Comptroller General to request records for the purpose of either conducting an economic study of the pharmaceutical industry or securing information desired by individual Members of Congress. Much of what we have already said provides an answer to this contention. The legislative history reveals that Congress granted the GAO authority to examine directly pertinent records under individual procurement contracts in order to assess the reasonableness of the prices paid by the Government and to detect inefficiency and wastefulness. Given this authorized purpose, there is no reason to conclude that the GAO may not compile the information that it may lawfully *844 obtain, within the statutory limits outlined above, from an investigation of individual contracts in order to arrive at a picture of the pharmaceutical industry generally.[24] Moreover, the fact that two Senators encouraged the GAO to use its lawful authority to the fullest extent possible is irrelevant. The GAO is an independent agency within the Legislative Branch that exists in large part to serve the needs of Congress. If the records sought by the GAO are within the scope of the access-to-records provisions, the fact that the Comptroller General's request had its origin in the requests of Congressmen or that the GAO reported the data to Congress does not vitiate its authority. VI Because of the GAO's mandate to detect fraud, waste, inefficiency, and extravagance through full audits of Government contracts, we cannot accept Merck's view that the only records directly pertinent to the four fixed-price contracts at issue are those necessary to verify that Merck actually had an established catalog price for the item procured, that it sold the items in substantial quantities to the general public at the catalog price, that it delivered the product specified, and that it received from the Government no more than the amount due under the contract. On the other hand, given the policy of protecting the privacy of contractors' business records also expressed in the statutory language and legislative history, *845A neither can we accept the Government's contention that it must be permitted access to all of Merck's cost records. Accordingly, we affirm the judgment below. It is so ordered. *845B JUSTICE WHITE, with whom JUSTICE MARSHALL joins, concurring in part and dissenting in part. I join Part V of the Court's opinion, and I concur in the remainder to the extent it upholds the GAO's right to inspect Merck's "direct" cost records.[1] I dissent to the extent the Court refuses to allow the GAO access to any of Merck's "indirect" cost records. The statutory provisions at issue, 10 U.S. C. 21(b) and 41 U.S. C. 254(c), clearly were intended to allow the GAO the right to a reasonable degree of access to contractors' records needed to determine whether prices charged to the Government were excessive. Of course, this right was not intended to be unlimited; the Court correctly identifies a congressional intent to protect private contractors from "officious governmental intermeddling." Ante, at 85. *846 Unfortunately, for the conceded purpose of creating a bright-line test, ante, at 841, n. 18, the Court goes astray by adopting a rule that flatly bars the GAO from access to all indirect cost records pertaining to most fixed-price contracts, regardless of how urgent the need for them might be. The Court frankly admits that its rule may deny the GAO access to cost records critical to an assessment of the fairness of the contract price, thereby impeding the GAO's ability to protect the public against wasteful Government expenditures. Ante, at 8-84. These undesirable consequences could be avoided, without sacrificing the contractors' right to be free from unwarranted GAO "snooping," by holding the Government to the burden of showing that requested records likely had a direct and substantial impact on the price charged to the Government and thus are "directly pertinent" to the contract. I In each of the four contracts involved here, the United States agreed to purchase certain pharmaceutical products from Merck at a fixed price. In each instance, Merck proposed a contract price based on its catalog or "market" price, and the Government contracting officer accepted the proposal without any "haggling" or other negotiation as to price. Each of the contracts contains the statutorily mandated provision allowing the GAO the right to inspect Merck's books and records that are "directly pertinent" to the contract. The GAO now seeks to examine those Merck records that indicate the cost to Merck of the goods sold to the Government. The GAO deems such an examination necessary to carry out its statutory duty to "investigate all matters relating to the receipt, disbursement, and application of public funds," and to "make recommendations looking to greater economy or efficiency in public expenditures." 1 U.S. C. 5(a). By inspecting Merck's cost records, the GAO hopes to be able to estimate whether the contract price paid by the Government *847 was a fair one. The GAO has confirmed by experience the common-sense observation that the mere "fact that a product is listed in a manufacturer's catalog and offered to any customer is no assurance that the standard catalog price is reasonable."[2] If the GAO's inspection were to reveal that Merck's prices were unreasonably high, the GAO presumably would recommend to the contracting agencies that they "negotiate prices more carefully or obtain greater competition in future similar procurements,"[] or that they take other action "looking to greater economy or efficiency," 1 U.S. C. 5(a), in future expenditures. The Court concludes, however, that, despite the inclusion of the access-to-records provision in the contracts, the GAO has no right to inspect any of Merck's indirect cost records to determine how much it cost Merck to produce the products sold to the Government. This holding exalts the contractors' privacy interest to such a degree that it displaces the GAO's right to inspect records unquestionably needed for an accurate determination of the fairness of the contract price. Congress did not intend this order of priority of interests. What Congress did intend was that contractors be spared the burden of unwarranted intrusions. Congress did not want the GAO to be irresponsibly "snooping" into records lacking relevance to the question whether the Government paid a fair price for the products it purchased. But Congress did not wish to deny the GAO access to records legitimately needed to detect waste, extravagance, and ineffective procurement. To the extent the GAO can prove that some or all of a contractor's indirect cost records fall into this latter category, the GAO's right of access should be sustained. *848 II I begin with the language of the statute. Jackson Transit 2 ; Touche Ross & The legislation at issue requires unadvertised Government contracts to include a clause allowing the GAO to examine any of the contractor's books, documents, papers, or records "that directly pertain to, and involve transactions relating to, the contract" 10 U.S. C. 21(b). See 41 U.S. C. 254(c). " `[I]t is hard to imagine anything more directly related to a contract than the cost of producing the items covered by it or the matters going into the makeup of the price.' " Eli Lilly & 91 (CA7), cert. denied, 49 U.S. 959 Accord, SmithKline cert. pending, Nos. 81-2, 81-2268; Hewlett-Packard 85 F.2d 101, cert. denied, 90 U.S. 988 The Court does not contend otherwise. Indeed, all the Court has to say about the literal statutory wording is that it requires "some close connection between the type of records sought and the particular contract." Ante, at 81. But there is, of course, no reason why the records of all indirect costs inherently lack the requisite "close connection." As the Court fully recognizes, ante, at 8-84, in some instances indirect costs have a critical bearing on the makeup of the contract price. The Government should at least be allowed an opportunity to prove that such is the case, and, to the extent it succeeds in this endeavor, the GAO should be allowed access. III Even if, contrary to my belief, the statutory language is somehow regarded as ambiguous, resort to the legislative history further refutes the Court's position. The legislative history of the access-to-records provisions is relatively brief and to the point. It demonstrates beyond doubt that Congress *849 authorized the GAO to examine all of a contractor's books legitimately needed to evaluate Government procurement techniques by ascertaining whether the Government had paid a reasonable price for the contractor's goods or services. Representative Hardy, the bill's sponsor, indicated that the bill was intended to improve the adequacy of Government procurement techniques in various ways. He expressly remarked: "The major purposes of this bill are twofold: One, to give the Comptroller General the proper tools to do the job the Congress has instructed him to do; and, two, to provide a deterrent to improprieties and wastefulness in the negotiation of contracts." 97 Cong. Rec. 1198 (1951). As Congress has instructed the GAO to "investigate all matters relating to the receipt, disbursement, and application of public funds," and to "make recommendations looking to greater economy or efficiency in public expenditures." 1 U.S. C. 5(a).[4] Representative Hardy early explained to his colleagues that normal procurement procedures called for competitive bidding but that procurement by negotiation was sometimes necessary. In the latter context, where there is no competitive bidding to "operat[e] as a brake on the price which a contractor can demand from the Government," Representative Hardy saw the need to establish "every reasonable safeguard against waste and extravagance in the spending" of Government funds. 97 Cong. Rec., at 1198. He felt that, no matter how "conscientious and honest" the Government representatives might be, the contractor's representatives would, in the great majority of cases, have a tremendous advantage *850 from the standpoint of both training and experience. Thus, there was "every chance in the world that the Government [would] come out on the short end of the deal," and Representative Hardy deemed it necessary to "at least enable the [GAO] to check the transaction, both from the Government records and the contractors' books." The debate continued two days later when Representative Hardy proposed an amendment that would have allowed agency heads the discretion to omit the access-to-records clause from contracts with foreign contractors, at 171, and Representative Harvey proposed an amendment that would have exempted "a manufacturer or processor who is a supplier of material to a primary contractor and who is not a subcontractor" from the scope of the bill's coverage. at 176. Both of these proposals were ultimately defeated, but, during the lively debate on the proposed amendments, several Members of Congress stated without contradiction that the bill would allow the GAO extremely broad authority to examine records. For example, Representative Harvey asked whether, if the bill became law, a subcontractor of a primary Government contractor "would be subject to having all of his books opened up for inspection by Government officials." at 172 Representative Hardy replied that it would, unless the subcontractor only supplied some "casual item" in connection with the performance of the contract. Based on this understanding, Representative Harvey later argued that his limiting amendment was needed, because otherwise "every manufacturer. of goods that eventually find their way into defense production is going to have to supply all the answers to the GAO on everything he manufactures." at 176. "[E]very section of his books will have to come under the complete scrutiny of the GAO." In response, Representative Hardy did not dispute this characterization of the scope of the GAO's authority, but he nevertheless opposed the Harvey amendment, because it "would make it impossible *851 frequently to obtain information which would be vital in the study of a contract." Representative Hoffman, a strong opponent of the bill, several times during the debate observed that the "GAO under this bill can go into the books of [contractors] and ask and get from them anything and everything they want." at 17. He indicated his belief that the bill would allow the GAO "to snoop into [a contractor's] books and find out what [the goods or services] cos[t] or what will be a fair price or what profit we make." See also at 175, 177. Standing alone, of course, the statements of an opponent of the bill, such as Representative Hoffman, would not carry much weight,[5] but here, even though all comments pro and con were made in the midst of a free-wheeling debate, the proponent of the bill, Representative Hardy, in no way took issue with Representative Hoffman's view of the scope of the GAO's authority. Representative Hardy's essential response was that it was necessary to require contractors to afford the GAO this broad authority, and that Representative Hoffman's fears of excessive GAO "snooping" were groundless, because the GAO would have neither the inclination nor the manpower to examine the records of every individual supplier. at 176, 177. The original Hardy bill required the inclusion, in negotiated contracts, of a clause allowing the GAO the right to examine any records that were "pertinent" to the contract. At the very end of the debate, Representative Hoffman proposed the amendment that added the word "directly" before the word "pertinent." at 177. Representative Hoffman explained that he had discussed his amendment with Representative Hardy, the bill's sponsor, and that, although the amendment was "not all that it should be," it was the *852 most that Representative Hardy would agree to. [6] Representative Hoffman then stated that the purpose of his amendment was "to limit the `snooping' that may be carried on under this bill which we do not have the votes to defeat." At that point, Representative Hardy remarked that he had no objection to the amendment, and it was accepted without further discussion. [7] In light of Representative Hardy's consistent position throughout the debate, it cannot plausibly be argued that he agreed to the Hoffman amendment with the understanding that it effected a drastic reduction in the scope of the bill's coverage or purpose. As outlined above, Representative Hardy continuously spoke of the need to provide a mechanism to combat waste and extravagance in federal procurement, and he vigorously and successfully opposed the Harvey amendment, which would have significantly limited the bill's *85 scope. His acceptance of the addition of the word "directly" may have been largely a sop to the bill's opponents. The most that can be said is that Representative Hardy accepted the amendment to allay concerns that the legislation "would let the GAO go into everybody's business and look it over if they just wanted to take a look at it." at 17 The amendment gave assurance that the bill would not be used as a basis for inspection of books and records having no substantial connection with Government procurement. But the amendment definitely was not intended to bar the GAO's access to records legitimately needed to assess the reasonableness of prices charged to the Government, and thereby to protect the Government against waste, excessive prices, and ineffective procurement.[8] IV Despite the plain statutory language and legislative history, the Court refuses to uphold the GAO's right of access to all cost records that are essential to an accurate determination of whether the Government wasted money by entering into these contracts. Adopting the so-called "Bristol test,"[9] the Court affirms a judgment that limits the GAO's access to records pertaining to a contractor's "manufacturing costs (including raw and packaging materials, labor and fringe benefits, quality control and supervision), manufacturing overhead (including plant *854 administration, production planning, warehousing, utilities and security), royalty expenses, and delivery costs."[10] The Bristol test excludes "books, documents, papers, or records with respect to research and development, marketing and promotion, distribution and administration (except to the extent such data may be included in the cost items listed above)."[11] The Court describes this test, perhaps inaccurately,[12] as being based on a "direct costs v. indirect costs" or an "allocated costs v. unallocated costs" dichotomy. The courts that have adopted this test have no doubt been influenced by a need to come up with some form of reasonable limitation on the broad access demand the GAO has made. The GAO claims it has the right to examine records pertaining to every cost "defrayed from commingled general revenues that include the Government's payments under the contract." I agree that the GAO's demand is somewhat over-broad; the Court correctly observes, ante, at 86, that it would require Merck to allow inspection of cost records totally unrelated to the Government contracts, such as records of expenditures for raw materials used to manufacture products other than those sold to the Government under the contracts.[1] However, I am not convinced that the proper conclusion is to limit the GAO to the cost records allowable under the Bristol test. The Bristol court adopted its standard solely on the basis of the cost records that the contractor was willing to disclose *855 to the GAO. The court felt that the contractor's offer "reflected a responsible and reasonable effort to distinguish `directly pertinent' matter within the meaning of the access to records clause."[14] The court thus accepted the contractor's contention that the cost records it was not willing to disclose had "only the most general relation, if any, to the prices charged."[15] Although cost records having, at most, only an insubstantial relation to the price charged are not "directly pertinent" to the contract, it is apparent that many of the records deemed unexaminable under Bristol relate to costs that may have had a critical bearing on the prices charged, and that would be of central importance to a GAO inquiry into the fairness of these prices. In the pharmaceutical industry, it has been estimated that "direct" or "allocated" costs constitute only about nine percent of the sale price of individual products. The so-called "indirect" or "unallocated" costs primarily research and development, advertising and other promotion, general administrative expenses, and taxes and profit are much larger and economically more significant.[16] Yet, under the Bristol test, the GAO is denied access to all records in this category, thus making it impossible for the GAO to make an accurate assessment of the fairness of the prices and thus the adequacy of the Government's procurement technique.[17] *856 In my view, the correct rule in a case of this nature is that any books or records that bear directly on the question whether the Government paid a fair price for the goods or services it purchased are "directly pertinent" to the contract of purchase. Under this test, for example, the cost records of an advertising campaign to promote only the particular products sold to the Government, or a research project designed specifically to develop or improve these products, would clearly be "directly pertinent."[18] On the other hand, *857 records of advertising campaigns and research projects involving only unrelated products would lack the requisite degree of pertinence. Of course, in many instances a commercial advertisement or a research project will be designed to promote or develop both products sold to the Government and other, unrelated products. With respect to cost records of efforts such as these, there might be some close questions as to whether such records are "directly pertinent" to the Government contracts. If, however, the GAO could bear the burden of proving that the records are of costs that likely had a direct and substantial impact on the price charged to the Government under the contract, I would allow the GAO access to the records. V The inquiry does not necessarily come to an end once the GAO establishes that it has a statutory and contractual right to inspect particular records. In addition to the statutory *858 "directly pertinent" limitation, the GAO's right of inspection is further circumscribed, and the contractors' right to privacy is further protected, by constitutional standards, such as the Fourth Amendment reasonableness requirement. Where, as here, the GAO wishes to see a contractor's records and the contractor declines to accede voluntarily to a GAO request, the GAO must issue an administrative subpoena. If the contractor refuses to comply with the subpoena, the GAO must apply to a district court for enforcement of the subpoena. 1 U.S. C. 54(c) (1976 ed., Supp. V).[19] Once in the district court, a contractor such as Merck has the benefit of all of this Court's jurisprudence limiting the bounds of an agency's right to demand the production of a private entity's records. Essentially, in assessing an agency's application for enforcement of an administrative subpoena, we have insisted that the agency's demand be reasonable. The general rule is that "when an administrative agency subpoenas corporate books or records, the Fourth Amendment requires that the subpoena be sufficiently limited in scope, relevant in purpose, and specific in directive so that compliance will not be unduly burdensome." See v. City of 87 U.S. 541, See United 8 U.S. 62, 652-65 ; Oklahoma Press Publishing 27 U.S. 186, ; 1 K. Davis, Administrative Law Treatise 4:15 This standard is a flexible one that takes into account the extent to *859 which the public interest will be served if the subpoena is enforced. See v. City of In the present case, Merck has claimed that compliance with the GAO's demand would entail substantial expense and disruption of its operations. This claim is based on evidence that the proposed GAO inspection would require Merck to allow an entire team of GAO auditors to remain on site at Merck for over two years.[20] This, of course, is a matter for first-instance determination by the District Court, but, if the proposed GAO inspection would in fact cause such a high degree of interference with Merck's business, a credible argument could be made that compliance would be unreasonable and unduly burdensome and that the GAO's access should therefore be limited in some way. VI In view of the foregoing, I would remand these cases to the District Court, with instructions to uphold the GAO's request for access to Merck's "direct" and "indirect" cost records, but only to the extent that: (1) the records sought by GAO related to costs that likely had a direct and substantial impact on the prices charged to the Government under the contracts; and (2) the request is reasonable in scope and would not unduly burden Merck. To the extent the GAO's demand conforms to these statutory and constitutional standards, Merck should be required to allow the GAO's examination to proceed.[21] *860 JUSTICE BLACKMUN, with whom JUSTICE STEVENS joins, concurring in part and dissenting in part. The question before us is the proper construction of the access-to-records clauses required by law to be inserted in various Government contracts. These clauses authorize the Comptroller General to inspect any records that "directly pertain to and involve transactions relating to" the contract into which the clause was inserted. 10 U.S. C. 21(b); see 41 U.S. C. 254(c) (permitting access to "directly pertinent" records "involving transactions related to" the contracts). The Court now holds that these clauses permit access to certain cost records, even when the contract is not cost-based and was negotiated without regard to costs. I cannot agree that cost records are "directly pertinent" to non-cost-based contracts. I therefore dissent insofar as the Court permits access to such records. The Court correctly begins its analysis by focusing on the language of the statute, noting that it contains "words of limitation designed to restrict the class of records to which access is permitted by requiring some close connection between the type of records sought and the particular contract." Ante, at 81. But after this nod in the direction of the statutory language, the Court, unaccountably in my estimation, fails to examine the type of records sought, the nature of the particular contract, and the closeness of the connection between them. Instead, the Court wanders off to explore the general "aims embraced by Congress in enacting the access-to-records provisions": protecting contractors from governmental *861 intrusion, and equipping the General Accounting Office with a tool to detect fraud and waste in Government contracting. Ante, at 8. Given the "tension" between these "dual, conflicting aims," the Court concludes that it must "balance the public interest served by full GAO investigations against the private interest in freedom from officious governmental intermeddling in the contractor's private business affairs." Ante, at 84-85. The Court then reaches what it deems an "appropriate accommodation of the competing goals reflected in the legislative history" by holding that the Comptroller General may inspect records of "direct costs," but is barred from inspecting other records except to the extent they are allocated to the particular contract. Ante, at 89-840. I agree that the legislative history reflects conflicting congressional goals, but it appears to me that the necessary "balancing" and "accommodation" of these goals has already been accomplished by Congress. Congress may well have intended to give the GAO a tool to detect fraud and waste and to improve the procurement process, but the particular tool it crafted was a limited one. It gave the Comptroller General access to a narrow category of records: those directly pertinent to the contracts between the Government and its contracting partner. The Court asserts that Merck's records of direct costs are directly pertinent to its contracts with the Government because such costs "are, by definition, readily identifiable as attributable to the specific product supplied under the contract." Ante, at 840 Records of indirect costs are not pertinent to Merck's contracts, the Court says, because such records are "completely unrelated to either the contract underlying the access demand or the product procured under that contract." Ante, at 86 But, as the Court obviously recognizes, there is a difference between records pertinent to the "contracts" by which the Government does its purchasing, and records pertinent to *862 "products" ultimately purchased under those contracts.[1] In interpreting the access-to-records statutes we must "presume that Congress chose its words with care," 65 and Congress chose to require pertinence to the specific "contract" at issue, not to the "product" procured. It is a fundamental canon of statutory construction that "unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning." 444 U.S. 7, In its ordinary meaning, a "contract" is a legally enforceable bargain, formed by mutual consent and supported by consideration. Restatement (Second) of Contracts 17 ; 1 W. Jaeger, Williston on Contracts 18 (d ed. 1957). Particular goods and services may be the subject matter of a contract, but the "contract" itself is the agreement between the parties. Nothing in the legislative history suggests that Congress intended any other meaning by its choice of the word "contract."[2] The access-to-records statutes were intended to *86 permit inspection of cost records when the negotiation of a particular contract depended on representations about the contractor's costs, or when the contract price itself varied according to costs. See 97 Cong. Rec. 1198 (1951) (remarks of Rep. Hardy).[] There is, however, no indication that Congress *864 intended to permit such inspection when costs were not relevant to the contract's negotiation, its terms, or its performance. Apparently recognizing that cost records are not accessible to the Comptroller General unless they bear some relationship to the actual contracts at issue, the Court asserts that direct cost records are pertinent to non-cost-based contracts because "the contractor will have some regard for these costs in setting even a catalog price in order to avoid a loss on the product." The Court concludes that "these costs therefore have a very direct influence on the price charged the Government." Ante, at 840.[4] But the fact that costs may affect a seller's decision to offer a certain price does not make costs directly pertinent to the contract. A contract, after all, is a meeting of the minds. Many factors may affect one party's willingness to make an offer or the other party's willingness to accept it, but the vast majority of these factors are not mentioned in the bargaining process and play no part in the agreement ultimately reached. An unarticulated motive for one party's assent to a bargain is not pertinent, much less "directly pertinent," to the bargain itself. Pursuant to the contracts at issue here, Merck has promised to provide various pharmaceutical products and the Government has promised to pay a certain price. The Government's promise was based on Merck's standard catalog price for the products purchased. Information about Merck's production *865 costs was not requested, and neither the contract price nor its performance was tied to costs in any respect. Merck's costs were thus irrelevant to the bargain reached by the parties. Because the Government chose not to make costs an issue during the negotiations, the terms of the contracts would have been the same whether Merck's costs represented 1 percent, 10 percent, or 100 percent of the price the Government agreed to pay. The conclusion seems inescapable that Merck's costs, and consequently its cost records, are not pertinent to the agreements it entered into with the Government.[5] If the Government is concerned that it may be paying too high a price for pharmaceutical products, it is always free to ask for cost data in connection with any contract it negotiates in the future. Cost records then would be pertinent, because representations about costs would form part of the basis for the bargain between the parties. In this case, however, costs were not relevant to the Government's decision to contract with Merck. Cost records do not become "directly pertinent" to these contracts simply because the Government now wants information that did not concern it at the time of contracting. I would hold that when the terms of a contract are not tied to costs and the contractor makes no representations about costs during its negotiations with the Government, cost records do not "directly pertain to and involve transactions relating to the contract" and are not subject to inspection by the Comptroller General. The only records "directly pertinent" to such a contract would be those necessary to verify the terms of the contract and the representations upon which *866 the contract was based. In this case, the Comptroller General's access would be limited to those records necessary to verify that Merck actually had an established catalog price for the products it sold, that it sold the products in substantial quantities to the general public at the catalog price, that it delivered the product specified, and that it received from the Government no more than the amount due under the contract. To the extent the Court concludes that the Comptroller General may obtain Merck's cost records as well, I dissent. |
Justice Thomas | majority | false | Bogan v. Scott-Harris | 1998-03-03T00:00:00 | null | https://www.courtlistener.com/opinion/118178/bogan-v-scott-harris/ | https://www.courtlistener.com/api/rest/v3/clusters/118178/ | 1,998 | 1997-034 | 2 | 9 | 0 | It is well established that federal, state, and regional legislators are entitled to absolute immunity from civil liability for their legislative activities. In this case, petitioners argue that they, as local officials performing legislative functions, are entitled to the same protection. They further argue that their acts of introducing, voting for, and signing an ordinance eliminating the government office held by respondent constituted legislative activities. We agree on both counts and therefore reverse the judgment below.
I
Respondent Janet Scott-Harris was administrator of the Department of Health and Human Services (DHHS) for the city of Fall River, Massachusetts, from 1987 to 1991. In 1990, respondent received a complaint that Dorothy Biltcliffe, an employee serving temporarily under her supervision, had made repeated racial and ethnic slurs about her colleagues. After respondent prepared termination charges against Biltcliffe, Biltcliffe used her political connections to press her case with several state and local officials, including *47 petitioner Marilyn Roderick, the vice president of the Fall River City Council. The city council held a hearing on the charges against Biltcliffe and ultimately accepted a settlement proposal under which Biltcliffe would be suspended without pay for 60 days. Petitioner Daniel Bogan, the mayor of Fall River, thereafter substantially reduced the punishment.
While the charges against Biltcliffe were pending, Mayor Bogan prepared his budget proposal for the 1992 fiscal year. Anticipating a 5 to 10 percent reduction in state aid, Bogan proposed freezing the salaries of all municipal employees and eliminating 135 city positions. As part of this package, Bogan called for the elimination of DHHS, of which respondent was the sole employee. The city council ordinance committee, which was chaired by Roderick, approved an ordinance eliminating DHHS. The city council thereafter adopted the ordinance by a vote of 6 to 2, with petitioner Roderick among those voting in favor. Bogan signed the ordinance into law.
Respondent then filed suit under Rev. Stat. § 1979, 42 U.S. C. § 1983, against the city, Bogan, Roderick, and several other city officials. She alleged that the elimination of her position was motivated by racial animus and a desire to retaliate against her for exercising her First Amendment rights in filing the complaint against Biltcliffe. The District Court denied Bogan's and Roderick's motions to dismiss on the ground of legislative immunity, and the case proceeded to trial. Scott-Harris v. City of Fall River, et al., Civ. 91-12057PBS (Mass., Jan. 27, 1995), App. to Pet. for Cert. 1.
The jury returned a verdict in favor of all defendants on the racial discrimination charge, but found the city, Bogan, and Roderick liable on respondent's First Amendment claim, concluding that respondent's constitutionally protected speech was a substantial or motivating factor in the elimination *48 of her position.[1] On a motion for judgment notwithstanding the verdict, the District Court again denied Bogan's and Roderick's claims of absolute legislative immunity, reasoning that "the ordinance amendment passed by the city council was an individually-targeted administrative act, rather than a neutral, legislative elimination of a position which incidentally resulted in the termination of plaintiff." Id., at 20.
The United States Court of Appeals for the First Circuit set aside the verdict against the city but affirmed the judgments against Roderick and Bogan. Scott-Harris v. Fall River, 134 F.3d 427 (1997).[2] Although the court concluded that petitioners have "absolute immunity from civil liability for damages arising out of their performance of legitimate legislative activities," id., at 440, it held that their challenged conduct was not "legislative," id., at 441. Relying on the jury's finding that "constitutionally sheltered speech was a substantial or motivating factor" underlying petitioners' conduct, the court reasoned that the conduct was administrative, rather than legislative, because Roderick and Bogan "relied on facts relating to a particular individual [respondent] in the decision-making calculus." Ibid. We granted certiorari. 520 U.S. 1263 (1997).
II
The principle that legislators are absolutely immune from liability for their legislative activities has long been recognized in Anglo-American law. This privilege "has taproots *49 in the Parliamentary struggles of the Sixteenth and Seventeenth Centuries" and was "taken as a matter of course by those who severed the Colonies from the Crown and founded our Nation." Tenney v. Brandhove, 341 U.S. 367, 372 (1951). The Federal Constitution, the Constitutions of many of the newly independent States, and the common law thus protected legislators from liability for their legislative activities. See U. S. Const., Art. I, § 6; Tenney, supra, at 372-375.
Recognizing this venerable tradition, we have held that state and regional legislators are entitled to absolute immunity from liability under § 1983 for their legislative activities. See Tenney, supra (state legislators); Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391 (1979) (regional legislators);[3] see also Kilbourn v. Thompson, 103 U.S. 168, 202-204 (1881) (interpreting the federal Speech and Debate Clause, U. S. Const., Art. I, § 6, to provide similar immunity to Members of Congress). We explained that legislators were entitled to absolute immunity from suit at common law and that Congress did not intend the general language of § 1983 to "impinge on a tradition so well grounded in history and reason." Tenney, supra, at 376. Because the common law accorded local legislators the same absolute immunity it accorded legislators at other levels of government, and because the rationales for such immunity are fully applicable to local legislators, we now hold that local legislators are likewise absolutely immune from suit under § 1983 for their legislative activities.
The common law at the time § 1983 was enacted deemed local legislators to be absolutely immune from suit for their legislative activities. New York's highest court, for example, held that municipal aldermen were immune from suit for *50 their discretionary decisions. Wilson v. New York, 1 Denio 595 (1845). The court explained that when a local legislator exercises discretionary powers, he "is exempt from all responsibility by action for the motives which influence him, and the manner in which such duties are performed. If corrupt, he may be impeached or indicted, but the law will not tolerate an action to redress the individual wrong which may have been done." Id., at 599.[4] These principles, according to the court, were "too familiar and well settled to require illustration or authority." Id., at 599-600.
Shortly after § 1983 was enacted, the Mississippi Supreme Court reached a similar conclusion, holding that town aldermen could not be held liable under state law for their role in the adoption of an allegedly unlawful ordinance. Jones v. Loving, 55 Miss. 109, 30 Am. Rep. 508 (1877). The court explained that "[i]t certainly cannot be argued that the motives of the individual members of a legislative assembly, in voting for a particular law, can be inquired into, and its supporters be made personally liable, upon an allegation that they acted maliciously towards the person aggrieved by the passage of the law." Id., at 111, 30 Am. Rep., at 509. The court thus concluded that "[w]henever the officers of a municipal corporation are vested with legislative powers, they hold and exercise them for the public good, and are clothed with *51 all the immunities of government, and are exempt from all liability for their mistaken use." Ibid.
Treatises of that era confirm that this was the pervasive view. A leading treatise on municipal corporations explained that "[w]here the officers of a municipal corporation are invested with legislative powers, they are exempt from individual liability for the passage of any ordinance within their authority, and their motives in reference thereto will not be inquired into." 1 J. Dillon, Law of Municipal Corporations § 313, pp. 326-327 (3d ed. 1881) (emphasis in original). Thomas Cooley likewise noted in his influential treatise on the law of torts that the "rightful exemption" of legislators from liability was "very plain" and applied to members of "inferior legislative bodies, such as boards of supervisors, county commissioners, city councils, and the like." Cooley 376; see also J. Bishop, Commentaries on the Non-Contract Law § 744 (1889) (noting that municipal legislators were immune for their legislative functions); Mechem §§ 644-646 (same); Throop, supra n. 4, § 709, at 671 (same).
Even the authorities cited by respondent are consistent with the view that local legislators were absolutely immune for their legislative, as distinct from ministerial, duties. In the few cases in which liability did attach, the courts emphasized that the defendant officials lacked discretion, and the duties were thus ministerial. See, e. g., Morris v. The People, 3 Denio 381, 395 (N. Y. 1846) (noting that the duty was "of a ministerial character only"); Caswell v. Allen, 7 Johns. 63, 68 (N. Y. 1810) (holding supervisors liable because the act was "mandatory" and "[n]o discretion appear[ed] to [have been] given to the supervisors"). Respondent's heavy reliance on our decision in Amy v. Supervisors, 11 Wall. 136 (1871), is misguided for this very reason. In that case, we held that local legislators could be held liable for violating a court order to levy a tax sufficient to pay a judgment, but only because the court order had created a ministerial duty. Id., at 138 ("The rule is well settled, that where the law requires *52 absolutely a ministerial act to be done by a public officer, and he neglects or refuses to do such act, he may be compelled to respond in damages to the extent of the injury arising from his conduct"). The treatises cited by respondent confirm that this distinction between legislative and ministerial duties was dispositive of the right to absolute immunity. See, e. g., Cooley 377 (stating that local legislators may be held liable only for their "ministerial" duties); Mechem § 647 (same).
Absolute immunity for local legislators under § 1983 finds support not only in history, but also in reason. See Tenney v. Brandhove, 341 U. S., at 376 (stating that Congress did not intend for § 1983 to "impinge on a tradition so well grounded in history and reason"). The rationales for according absolute immunity to federal, state, and regional legislators apply with equal force to local legislators. Regardless of the level of government, the exercise of legislative discretion should not be inhibited by judicial interference or distorted by the fear of personal liability. See Spallone v. United States, 493 U.S. 265, 279 (1990) (noting, in the context of addressing local legislative action, that "any restriction on a legislator's freedom undermines the `public good' by interfering with the rights of the people to representation in the democratic process"); see also Kilbourn v. Thompson, 103 U. S., at 201-204 (federal legislators); Tenney, supra, at 377 (state legislators); Lake Country Estates, 440 U. S., at 405 (regional legislators). Furthermore, the time and energy required to defend against a lawsuit are of particular concern at the local level, where the part-time citizen-legislator remains commonplace. See Tenney, supra, at 377 (citing "the cost and inconvenience and distractions of a trial"). And the threat of liability may significantly deter service in local government, where prestige and pecuniary rewards may pale in comparison to the threat of civil liability. See Harlow v. Fitzgerald, 457 U.S. 800, 816 (1982).
*53 Moreover, certain deterrents to legislative abuse may be greater at the local level than at other levels of government. Municipalities themselves can be held liable for constitutional violations, whereas States and the Federal Government are often protected by sovereign immunity. Lake Country Estates, supra, at 405, n. 29 (citing Monell v. New York City Dept. of Social Servs., 436 U.S. 658 (1978)). And, of course, the ultimate check on legislative abusethe electoral processapplies with equal force at the local level, where legislators are often more closely responsible to the electorate. Cf. Tenney, supra, at 378 (stating that "[s]elfdiscipline and the voters must be the ultimate reliance for discouraging or correcting such abuses").
Any argument that the rationale for absolute immunity does not extend to local legislators is implicitly foreclosed by our opinion in Lake Country Estates. There, we held that members of an interstate regional planning agency were entitled to absolute legislative immunity. Bereft of any historical antecedent to the regional agency, we relied almost exclusively on Tenney `s description of the purposes of legislative immunity and the importance of such immunity in advancing the "public good." Although we expressly noted that local legislators were not at issue in that case, see Lake Country Estates, 440 U. S., at 404, n. 26, we considered the regional legislators at issue to be the functional equivalents of local legislators, noting that the regional agency was "comparable to a county or municipality" and that the function of the regional agency, regulation of land use, was "traditionally a function performed by local governments." Id., at 401-402.[5] Thus, we now make explicit what was implicit *54 in our precedents: Local legislators are entitled to absolute immunity from § 1983 liability for their legislative activities.
III
Absolute legislative immunity attaches to all actions taken "in the sphere of legitimate legislative activity." Tenney, supra, at 376. The Court of Appeals held that petitioners' conduct in this case was not legislative because their actions were specifically targeted at respondent. Relying on the jury's finding that respondent's constitutionally protected speech was a substantial or motivating factor behind petitioners' conduct, the court concluded that petitioners necessarily "relied on facts relating to a particular individual" and "devised an ordinance that targeted [respondent] and treated her differently from other managers employed by the City." 134 F.3d, at 441. Although the Court of Appeals did not suggest that intent or motive can overcome an immunity defense for activities that are, in fact, legislative, the court erroneously relied on petitioners' subjective intent in resolving the logically prior question of whether their acts were legislative.
Whether an act is legislative turns on the nature of the act, rather than on the motive or intent of the official performing it. The privilege of absolute immunity "would be of little value if [legislators] could be subjected to the cost and inconvenience and distractions of a trial upon a conclusion of the pleader, or to the hazard of a judgment against them based upon a jury's speculation as to motives." Ten- *55 ney, 341 U. S., at 377 (internal quotation marks omitted). Furthermore, it simply is "not consonant with our scheme of government for a court to inquire into the motives of legislators." Ibid. We therefore held that the defendant in Tenney had acted in a legislative capacity even though he allegedly singled out the plaintiff for investigation in order "to intimidate and silence plaintiff and deter and prevent him from effectively exercising his constitutional rights." Id., at 371 (internal quotation marks omitted).
This leaves us with the question whether, stripped of all considerations of intent and motive, petitioners' actions were legislative. We have little trouble concluding that they were. Most evidently, petitioner Roderick's acts of voting for an ordinance were, in form, quintessentially legislative. Petitioner Bogan's introduction of a budget and signing into law an ordinance also were formally legislative, even though he was an executive official. We have recognized that officials outside the legislative branch are entitled to legislative immunity when they perform legislative functions, see Supreme Court of Va. v. Consumers Union of United States, Inc., 446 U.S. 719, 731-734 (1980); Bogan's actions were legislative because they were integral steps in the legislative process. Cf. Edwards v. United States, 286 U.S. 482, 490 (1932) (noting "the legislative character of the President's function in approving or disapproving bills"); Smiley v. Holm, 285 U.S. 355, 372-373 (1932) (recognizing that a Governor's signing or vetoing of a bill constitutes part of the legislative process).
Respondent, however, asks us to look beyond petitioners' formal actions to consider whether the ordinance was legislative in substance. We need not determine whether the formally legislative character of petitioners' actions is alone sufficient to entitle petitioners to legislative immunity, because here the ordinance, in substance, bore all the hallmarks of traditional legislation. The ordinance reflected a discretionary, policy making decision implicating the budgetary priorities *56 of the city and the services the city provides to its constituents. Moreover, it involved the termination of a position, which, unlike the hiring or firing of a particular employee, may have prospective implications that reach well beyond the particular occupant of the office. And the city council, in eliminating DHHS, certainly governed "in a field where legislators traditionally have power to act." Tenney, supra, at 379. Thus, petitioners' activities were undoubtedly legislative.
* * *
For the foregoing reasons, the judgment of the Court of Appeals is reversed.[6]
It is so ordered.
| It is well established that federal, state, and regional legislators are entitled to absolute immunity from civil liability for their legislative activities. In this case, petitioners argue that they, as local officials performing legislative functions, are entitled to the same protection. They further argue that their acts of introducing, voting for, and signing an ordinance eliminating the government office held by respondent constituted legislative activities. We agree on both counts and therefore reverse the judgment below. I Respondent Janet Scott-Harris was administrator of the Department of Health and Human Services (DHHS) for the city of Fall River, Massachusetts, from 1987 to 1991. In 1990, respondent received a complaint that Dorothy Biltcliffe, an employee serving temporarily under her supervision, had made repeated racial and ethnic slurs about her colleagues. After respondent prepared termination charges against Biltcliffe, Biltcliffe used her political connections to press her case with several state and local officials, including *47 petitioner Marilyn Roderick, the vice president of the Fall River City Council. The city council held a hearing on the charges against Biltcliffe and ultimately accepted a settlement proposal under which Biltcliffe would be suspended without pay for 60 days. Petitioner Daniel Bogan, the mayor of Fall River, thereafter substantially reduced the punishment. While the charges against Biltcliffe were pending, Mayor Bogan prepared his budget proposal for the 1992 fiscal year. Anticipating a 5 to 10 percent reduction in state aid, Bogan proposed freezing the salaries of all municipal employees and eliminating 135 city positions. As part of this package, Bogan called for the elimination of DHHS, of which respondent was the sole employee. The city council ordinance committee, which was chaired by Roderick, approved an ordinance eliminating DHHS. The city council thereafter adopted the ordinance by a vote of 6 to 2, with petitioner Roderick among those voting in favor. Bogan signed the ordinance into law. Respondent then filed suit under Rev. Stat. 1979, 42 U.S. C. 1983, against the city, Bogan, Roderick, and several other city officials. She alleged that the elimination of her position was motivated by racial animus and a desire to retaliate against her for exercising her First Amendment rights in filing the complaint against Biltcliffe. The District Court denied Bogan's and Roderick's motions to dismiss on the ground of legislative immunity, and the case proceeded to trial. Scott-Harris v. City of Fall River, et al., Civ. 91-12057PBS (Mass., Jan. 27, 1995), App. to Pet. for Cert. 1. The jury returned a verdict in favor of all defendants on the racial discrimination charge, but found the city, Bogan, and Roderick liable on respondent's First Amendment claim, concluding that respondent's constitutionally protected speech was a substantial or motivating factor in the elimination *48 of her position.[1] On a motion for judgment notwithstanding the verdict, the District Court again denied Bogan's and Roderick's claims of absolute legislative immunity, reasoning that "the ordinance amendment passed by the city council was an individually-targeted administrative act, rather than a neutral, legislative elimination of a position which incidentally resulted in the termination of plaintiff." The United States Court of Appeals for the First Circuit set aside the verdict against the city but affirmed the judgments against Roderick and Bogan.[2] Although the court concluded that petitioners have "absolute immunity from civil liability for damages arising out of their performance of legitimate legislative activities," it held that their challenged conduct was not "legislative," Relying on the jury's finding that "constitutionally sheltered speech was a substantial or motivating factor" underlying petitioners' conduct, the court reasoned that the conduct was administrative, rather than legislative, because Roderick and Bogan "relied on facts relating to a particular individual [respondent] in the decision-making calculus." We granted certiorari. II The principle that legislators are absolutely immune from liability for their legislative activities has long been recognized in Anglo-American law. This privilege "has taproots *49 in the Parliamentary struggles of the Sixteenth and Seventeenth Centuries" and was "taken as a matter of course by those who severed the Colonies from the Crown and founded our Nation." The Federal Constitution, the Constitutions of many of the newly independent States, and the common law thus protected legislators from liability for their legislative activities. See U. S. Const., Art. I, 6; at -375. Recognizing this venerable tradition, we have held that state and regional legislators are entitled to absolute immunity from liability under 1983 for their legislative activities. See ; Lake Country ;[3] see also (interpreting the federal Speech and Debate Clause, U. S. Const., Art. I, 6, to provide similar immunity to Members of Congress). We explained that legislators were entitled to absolute immunity from suit at common law and that Congress did not intend the general language of 1983 to "impinge on a tradition so well grounded in history and reason." Because the common law accorded local legislators the same absolute immunity it accorded legislators at other levels of government, and because the rationales for such immunity are fully applicable to local legislators, we now hold that local legislators are likewise absolutely immune from suit under 1983 for their legislative activities. The common law at the time 1983 was enacted deemed local legislators to be absolutely immune from suit for their legislative activities. New York's highest court, for example, held that municipal aldermen were immune from suit for *50 their discretionary decisions. The court explained that when a local legislator exercises discretionary powers, he "is exempt from all responsibility by action for the motives which influence him, and the manner in which such duties are performed. If corrupt, he may be impeached or indicted, but the law will not tolerate an action to redress the individual wrong which may have been done."[4] These principles, according to the court, were "too familiar and well settled to require illustration or authority." -600. Shortly after 1983 was enacted, the Mississippi Supreme Court reached a similar conclusion, holding that town aldermen could not be held liable under state law for their role in the adoption of an allegedly unlawful ordinance. The court explained that "[i]t certainly cannot be argued that the motives of the individual members of a legislative assembly, in voting for a particular law, can be inquired into, and its supporters be made personally liable, upon an allegation that they acted maliciously towards the person aggrieved by the passage of the law." The court thus concluded that "[w]henever the officers of a municipal corporation are vested with legislative powers, they hold and exercise them for the public good, and are clothed with *51 all the immunities of government, and are exempt from all liability for their mistaken use." Treatises of that era confirm that this was the pervasive view. A leading treatise on municipal corporations explained that "[w]here the officers of a municipal corporation are invested with legislative powers, they are exempt from individual liability for the passage of any ordinance within their authority, and their motives in reference thereto will not be inquired into." 1 J. Dillon, Law of Municipal Corporations 313, pp. 326-327 (emphasis in original). Thomas Cooley likewise noted in his influential treatise on the law of torts that the "rightful exemption" of legislators from liability was "very plain" and applied to members of "inferior legislative bodies, such as boards of supervisors, county commissioners, city councils, and the like." Cooley 376; see also J. Bishop, Commentaries on the Non-Contract Law 744 (1889) (noting that municipal legislators were immune for their legislative functions); Mechem 644-646 (same); 709, at 671 (same). Even the authorities cited by respondent are consistent with the view that local legislators were absolutely immune for their legislative, as distinct from ministerial, duties. In the few cases in which liability did attach, the courts emphasized that the defendant officials lacked discretion, and the duties were thus ministerial. See, e. g., ; Respondent's heavy reliance on our decision in is misguided for this very reason. In that case, we held that local legislators could be held liable for violating a court order to levy a tax sufficient to pay a judgment, but only because the court order had created a ministerial duty. The treatises cited by respondent confirm that this distinction between legislative and ministerial duties was dispositive of the right to absolute immunity. See, e. g., Cooley 377 (stating that local legislators may be held liable only for their "ministerial" duties); Mechem 647 (same). Absolute immunity for local legislators under 1983 finds support not only in history, but also in reason. See 341 U. S., (stating that Congress did not intend for 1983 to "impinge on a tradition so well grounded in history and reason"). The rationales for according absolute immunity to federal, state, and regional legislators apply with equal force to local legislators. Regardless of the level of government, the exercise of legislative discretion should not be inhibited by judicial interference or distorted by the fear of personal liability. See ; see also U. S., 1-204 (federal legislators); ; Lake Country Furthermore, the time and energy required to defend against a lawsuit are of particular concern at the local level, where the part-time citizen-legislator remains commonplace. See (citing "the cost and inconvenience and distractions of a trial"). And the threat of liability may significantly deter service in local government, where prestige and pecuniary rewards may pale in comparison to the threat of civil liability. See *53 Moreover, certain deterrents to legislative abuse may be greater at the local level than at other levels of government. Municipalities themselves can be held liable for constitutional violations, whereas States and the Federal Government are often protected by sovereign immunity. Lake Country n. 29 ). And, of course, the ultimate check on legislative abusethe electoral processapplies with equal force at the local level, where legislators are often more closely responsible to the electorate. Cf. Any argument that the rationale for absolute immunity does not extend to local legislators is implicitly foreclosed by our opinion in Lake Country There, we held that members of an interstate regional planning agency were entitled to absolute legislative immunity. Bereft of any historical antecedent to the regional agency, we relied almost exclusively on `s description of the purposes of legislative immunity and the importance of such immunity in advancing the "public good." Although we expressly noted that local legislators were not at issue in that case, see Lake Country n. 26, we considered the regional legislators at issue to be the functional equivalents of local legislators, noting that the regional agency was "comparable to a county or municipality" and that the function of the regional agency, regulation of land use, was "traditionally a function performed by local governments."[5] Thus, we now make explicit what was implicit *54 in our precedents: Local legislators are entitled to absolute immunity from 1983 liability for their legislative activities. III Absolute legislative immunity attaches to all actions taken "in the sphere of legitimate legislative activity." The Court of Appeals held that petitioners' conduct in this case was not legislative because their actions were specifically targeted at respondent. Relying on the jury's finding that respondent's constitutionally protected speech was a substantial or motivating factor behind petitioners' conduct, the court concluded that petitioners necessarily "relied on facts relating to a particular individual" and "devised an ordinance that targeted [respondent] and treated her differently from other managers employed by the City." 134 F.3d, Although the Court of Appeals did not suggest that intent or motive can overcome an immunity defense for activities that are, in fact, legislative, the court erroneously relied on petitioners' subjective intent in resolving the logically prior question of whether their acts were legislative. Whether an act is legislative turns on the nature of the act, rather than on the motive or intent of the official performing it. The privilege of absolute immunity "would be of little value if [legislators] could be subjected to the cost and inconvenience and distractions of a trial upon a conclusion of the pleader, or to the hazard of a judgment against them based upon a jury's speculation as to motives." Ten- *55 341 U. S., Furthermore, it simply is "not consonant with our scheme of government for a court to inquire into the motives of legislators." We therefore held that the defendant in had acted in a legislative capacity even though he allegedly singled out the plaintiff for investigation in order "to intimidate and silence plaintiff and deter and prevent him from effectively exercising his constitutional rights." This leaves us with the question whether, stripped of all considerations of intent and motive, petitioners' actions were legislative. We have little trouble concluding that they were. Most evidently, petitioner Roderick's acts of voting for an ordinance were, in form, quintessentially legislative. Petitioner Bogan's introduction of a budget and signing into law an ordinance also were formally legislative, even though he was an executive official. We have recognized that officials outside the legislative branch are entitled to legislative immunity when they perform legislative functions, see Supreme Court of ; Bogan's actions were legislative because they were integral steps in the legislative process. Cf. ; -373 Respondent, however, asks us to look beyond petitioners' formal actions to consider whether the ordinance was legislative in substance. We need not determine whether the formally legislative character of petitioners' actions is alone sufficient to entitle petitioners to legislative immunity, because here the ordinance, in substance, bore all the hallmarks of traditional legislation. The ordinance reflected a discretionary, policy making decision implicating the budgetary priorities *56 of the city and the services the city provides to its constituents. Moreover, it involved the termination of a position, which, unlike the hiring or firing of a particular employee, may have prospective implications that reach well beyond the particular occupant of the office. And the city council, in eliminating DHHS, certainly governed "in a field where legislators traditionally have power to act." Thus, petitioners' activities were undoubtedly legislative. * * * For the foregoing reasons, the judgment of the Court of Appeals is reversed.[6] It is so ordered. |
Justice Breyer | dissenting | false | Sorrell v. IMS Health Inc. | 2011-06-23T00:00:00 | null | https://www.courtlistener.com/opinion/219616/sorrell-v-ims-health-inc/ | https://www.courtlistener.com/api/rest/v3/clusters/219616/ | 2,011 | 2010-077 | 2 | 6 | 3 | The Vermont statute before us adversely affects expres
sion in one, and only one, way. It deprives pharmaceutical
and data-mining companies of data, collected pursuant to
the government’s regulatory mandate, that could help
pharmaceutical companies create better sales messages.
In my view, this effect on expression is inextricably related
to a lawful governmental effort to regulate a commercial
enterprise. The First Amendment does not require courts
to apply a special “heightened” standard of review when
reviewing such an effort. And, in any event, the statute
meets the First Amendment standard this Court has
previously applied when the government seeks to regulate
commercial speech. For any or all of these reasons, the
Court should uphold the statute as constitutional.
I
The Vermont statute before us says pharmacies and
certain other entities
“shall not [1] sell . . . regulated records containing
prescriber-identifiable information, nor [2] permit the
use of [such] records . . . for marketing or promoting a
prescription drug, unless the prescriber consents.” Vt.
Stat. Ann., Tit. 18, §4631(d) (Supp. 2010).
2 SORRELL v. IMS HEALTH INC.
BREYER, J., dissenting
It also says that
“[3] [p]harmaceutical manufacturers and pharmaceu
tical marketers shall not use prescriber-identifiable
information for marketing or promoting a prescription
drug unless the prescriber consents.” Ibid.
For the most part, I shall focus upon the first and second
of these prohibitions. In Part IV, I shall explain why the
third prohibition makes no difference to the result.
II
In Glickman v. Wileman Brothers & Elliott, Inc., 521
U.S. 457 (1997), this Court considered the First Amend
ment’s application to federal agricultural commodity mar
keting regulations that required growers of fruit to
make compulsory contributions to pay for collective adver
tising. The Court reviewed the lawfulness of the regula
tion’s negative impact on the growers’ freedom voluntarily
to choose their own commercial messages “under the
standard appropriate for the review of economic regula
tion.” Id., at 469.
In this case I would ask whether Vermont’s regulatory
provisions work harm to First Amendment interests that
is disproportionate to their furtherance of legitimate regu
latory objectives. And in doing so, I would give significant
weight to legitimate commercial regulatory objectives—as
this Court did in Glickman. The far stricter, specially
“heightened” First Amendment standards that the major
ity would apply to this instance of commercial regulation
are out of place here. Ante, at 1, 8, 9, 10, 11, 13, 14, 15.
A
Because many, perhaps most, activities of human beings
living together in communities take place through speech,
and because speech-related risks and offsetting justifica
tions differ depending upon context, this Court has distin
guished for First Amendment purposes among different
Cite as: 564 U. S. ____ (2011) 3
BREYER, J., dissenting
contexts in which speech takes place. See, e.g., Snyder v.
Phelps, 562 U. S. ___, ___–___ (2011) (slip op., at 5–6).
Thus, the First Amendment imposes tight constraints
upon government efforts to restrict, e.g., “core” political
speech, while imposing looser constraints when the gov
ernment seeks to restrict, e.g., commercial speech, the
speech of its own employees, or the regulation-related
speech of a firm subject to a traditional regulatory pro
gram. Compare Boos v. Barry, 485 U.S. 312, 321 (1988)
(political speech), with Central Hudson Gas & Elec. Corp.
v. Public Serv. Comm’n of N. Y., 447 U.S. 557 (1980)
(commercial speech), Pickering v. Board of Ed. of Town
ship High School Dist. 205, Will Cty., 391 U.S. 563 (1968)
(government employees), and Glickman, supra (economic
regulation).
These test-related distinctions reflect the constitutional
importance of maintaining a free marketplace of ideas,
a marketplace that provides access to “social, political,
esthetic, moral, and other ideas and experiences.” Red
Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390 (1969);
see Abrams v. United States, 250 U.S. 616, 630 (1919)
(Holmes, J., dissenting). Without such a marketplace, the
public could not freely choose a government pledged to
implement policies that reflect the people’s informed will.
At the same time, our cases make clear that the First
Amendment offers considerably less protection to the
maintenance of a free marketplace for goods and services.
See Florida Bar v. Went For It, Inc., 515 U.S. 618, 623
(1995) (“We have always been careful to distinguish com
mercial speech from speech at the First Amendment’s
core”). And they also reflect the democratic importance of
permitting an elected government to implement through
effective programs policy choices for which the people’s
elected representatives have voted.
Thus this Court has recognized that commercial speech
including advertising has an “informational function” and
4 SORRELL v. IMS HEALTH INC.
BREYER, J., dissenting
is not “valueless in the marketplace of ideas.” Central
Hudson, supra, at 563; Bigelow v. Virginia, 421 U.S. 809,
826 (1975). But at the same time it has applied a less
than strict, “intermediate” First Amendment test when
the government directly restricts commercial speech.
Under that test, government laws and regulations may
significantly restrict speech, as long as they also “directly
advance” a “substantial” government interest that could
not “be served as well by a more limited restriction.”
Central Hudson, supra, at 564. Moreover, the Court has
found that “sales practices” that are “misleading, decep
tive, or aggressive” lack the protection of even this “inter
mediate” standard. 44 Liquormart, Inc. v. Rhode Island,
517 U.S. 484, 501 (1996) (opinion of Stevens, J.); see also
Central Hudson, supra, at 563; Virginia Bd. of Pharmacy
v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748,
772 (1976). And the Court has emphasized the need, in
applying an “intermediate” test, to maintain the
“ ‘commonsense’ distinction between speech proposing
a commercial transaction, which occurs in an area
traditionally subject to government regulation, and
other varieties of speech.” Ohralik v. Ohio State Bar
Assn., 436 U.S. 447, 455–456 (1978) (quoting Virginia
Bd. of Pharmacy, supra, at 771, n. 24; emphasis
added).
The Court has also normally applied a yet more lenient
approach to ordinary commercial or regulatory legislation
that affects speech in less direct ways. In doing so, the
Court has taken account of the need in this area of law to
defer significantly to legislative judgment—as the Court
has done in cases involving the Commerce Clause or the
Due Process Clause. See Glickman, supra, at 475–476.
“Our function” in such cases, Justice Brandeis said, “is
only to determine the reasonableness of the legislature’s
belief in the existence of evils and in the effectiveness of
Cite as: 564 U. S. ____ (2011) 5
BREYER, J., dissenting
the remedy provided.” New State Ice Co. v. Liebmann, 285
U.S. 262, 286–287 (1932) (dissenting opinion); Williamson
v. Lee Optical of Okla., Inc., 348 U.S. 483, 488 (1955)
(“It is enough that there is an evil at hand for correction,
and that it might be thought that the particular legisla
tive measure was a rational way to correct it”); United States
v. Carolene Products Co., 304 U.S. 144, 152 (1938)
(“[R]egulatory legislation affecting ordinary commercial
transactions is not to be pronounced unconstitutional” if it
rests “upon some rational basis within the knowledge and
experience of the legislators”).
To apply a strict First Amendment standard virtually as
a matter of course when a court reviews ordinary economic
regulatory programs (even if that program has a modest
impact upon a firm’s ability to shape a commercial mes
sage) would work at cross-purposes with this more basic
constitutional approach. Since ordinary regulatory pro
grams can affect speech, particularly commercial speech,
in myriad ways, to apply a “heightened” First Amendment
standard of review whenever such a program burdens
speech would transfer from legislatures to judges the
primary power to weigh ends and to choose means, threat
ening to distort or undermine legitimate legislative ob
jectives. See Glickman, 521 U.S., at 476 (“Doubts con
cerning the policy judgments that underlie” a program
requiring fruit growers to pay for advertising they dis
agree with does not “justify reliance on the First Amend
ment as a basis for reviewing economic regulations”). Cf.
Johanns v. Livestock Marketing Assn., 544 U.S. 550, 560–
562 (2005) (applying less scrutiny when the compelled
speech is made by the Government); United States v.
United Foods, Inc., 533 U.S. 405, 411 (2001) (applying
greater scrutiny where compelled speech was not “ancil
lary to a more comprehensive program restricting market
ing autonomy”). To apply a “heightened” standard of
review in such cases as a matter of course would risk what
6 SORRELL v. IMS HEALTH INC.
BREYER, J., dissenting
then-Justice Rehnquist, dissenting in Central Hudson,
described as a
“retur[n] to the bygone era of Lochner v. New York,
198 U.S. 45 (1905), in which it was common practice
for this Court to strike down economic regulations
adopted by a State based on the Court’s own notions
of the most appropriate means for the State to imple
ment its considered policies.” 447 U.S., at 589.
B
There are several reasons why the Court should review
Vermont’s law “under the standard appropriate for the
review of economic regulation,” not “under a heightened
standard appropriate for the review of First Amendment
issues.” Glickman, 521 U.S., at 469. For one thing, Ver
mont’s statute neither forbids nor requires anyone to say
anything, to engage in any form of symbolic speech, or to
endorse any particular point of view, whether ideological
or related to the sale of a product. Cf. id., at 469–470.
(And I here assume that Central Hudson might otherwise
apply. See Part III, infra.)
For another thing, the same First Amendment stan
dards that apply to Vermont here would apply to similar
regulatory actions taken by other States or by the Federal
Government acting, for example, through Food and Drug
Administration (FDA) regulation. (And the Federal Gov
ernment’s ability to pre-empt state laws that interfere
with existing or contemplated federal forms of regulation
is here irrelevant.)
Further, the statute’s requirements form part of a tra
ditional, comprehensive regulatory regime. Cf. United
Foods, supra, at 411. The pharmaceutical drug industry
has been heavily regulated at least since 1906. See Pure
Food and Drugs Act, 34 Stat. 768. Longstanding statutes
and regulations require pharmaceutical companies to
engage in complex drug testing to ensure that their drugs
Cite as: 564 U. S. ____ (2011) 7
BREYER, J., dissenting
are both “safe” and “effective.” 21 U.S. C. §§355(b)(1),
355(d). Only then can the drugs be marketed, at which
point drug companies are subject to the FDA’s exhaustive
regulation of the content of drug labels and the manner in
which drugs can be advertised and sold. §352(f)(2); 21
CFR pts. 201–203 (2010).
Finally, Vermont’s statute is directed toward informa
tion that exists only by virtue of government regulation.
Under federal law, certain drugs can be dispensed only by
a pharmacist operating under the orders of a medical
practitioner. 21 U.S. C. §353(b). Vermont regulates the
qualifications, the fitness, and the practices of pharma
cists themselves, and requires pharmacies to maintain a
“patient record system” that, among other things, tracks
who prescribed which drugs. Vt. Stat. Ann., Tit. 26,
§§2041(a), 2022(14) (Supp. 2010); Vt. Bd. of Pharmacy
Admin. Rules (Pharmacy Rules) 9.1, 9.24(e) (2009). But
for these regulations, pharmacies would have no way to
know who had told customers to buy which drugs (as is
the case when a doctor tells a patient to take a daily dose
of aspirin).
Regulators will often find it necessary to create tailored
restrictions on the use of information subject to their
regulatory jurisdiction. A car dealership that obtains
credit scores for customers who want car loans can be
prohibited from using credit data to search for new cus
tomers. See 15 U.S. C. §1681b (2006 ed. and Supp. III);
cf. Trans Union Corp. v. FTC, 245 F.3d 809, reh’g denied,
267 F.3d 1138 (CADC 2001). Medical specialists who
obtain medical records for their existing patients cannot
purchase those records in order to identify new patients.
See 45 CFR §164.508(a)(3) (2010). Or, speaking hypo
thetically, a public utilities commission that directs local
gas distributors to gather usage information for individual
customers might permit the distributors to share the data
with researchers (trying to lower energy costs) but forbid
8 SORRELL v. IMS HEALTH INC.
BREYER, J., dissenting
sales of the data to appliance manufacturers seeking to
sell gas stoves.
Such regulatory actions are subject to judicial review,
e.g., for compliance with applicable statutes. And they
would normally be subject to review under the Adminis
trative Procedure Act to make certain they are not “arbi
trary, capricious, [or] an abuse of discretion.” 5 U.S. C.
§706(2)(A) (2006 ed.). In an appropriate case, such review
might be informed by First Amendment considerations.
But regulatory actions of the kind present here have not
previously been thought to raise serious additional consti
tutional concerns under the First Amendment. But cf.
Trans Union LLC v. FTC, 536 U.S. 915 (2002) (KENNEDY,
J., dissenting from denial of certiorari) (questioning ban
on use of consumer credit reports for target marketing).
The ease with which one can point to actual or hypothet
ical examples with potentially adverse speech-related
effects at least roughly comparable to those at issue here
indicates the danger of applying a “heightened” or “inter
mediate” standard of First Amendment review where
typical regulatory actions affect commercial speech (say,
by withholding information that a commercial speaker
might use to shape the content of a message).
Thus, it is not surprising that, until today, this Court
has never found that the First Amendment prohibits the
government from restricting the use of information gath
ered pursuant to a regulatory mandate—whether the
information rests in government files or has remained in
the hands of the private firms that gathered it. But cf.
ante, at 11–14. Nor has this Court ever previously applied
any form of “heightened” scrutiny in any even roughly
similar case. See Los Angeles Police Dept. v. United Re
porting Publishing Corp., 528 U.S. 32 (1999) (no height
ened scrutiny); compare Cincinnati v. Discovery Network,
Inc., 507 U.S. 410, 426 (1993) (“[C]ommercial speech can
be subject to greater governmental regulation than non
Cite as: 564 U. S. ____ (2011) 9
BREYER, J., dissenting
commercial speech” because of the government’s “interest
in preventing commercial harms”), with ante, at 9–10, 11,
17–18, 24 (suggesting that Discovery Network supports
heightened scrutiny when regulations target commercial
speech).
C
The Court (suggesting a standard yet stricter than
Central Hudson) says that we must give content-based
restrictions that burden speech “heightened” scrutiny. It
adds that “[c]ommercial speech is no exception.” Ante,
at 10–11. And the Court then emphasizes that this is a
case involving both “content-based” and “speaker-based”
restrictions. See ante, at 8, 9, 10, 12, 14, 15, 16, 19, 20, 22,
24.
But neither of these categories—“content-based” nor
“speaker-based”—has ever before justified greater scrutiny
when regulatory activity affects commercial speech. See,
e.g., Capital Broadcasting Co. v. Mitchell, 333 F. Supp.
582 (DC 1971) (three-judge court), summarily aff’d
sub nom. Capital Broadcasting Co. v. Acting Attorney
General, 405 U.S. 1000 (1972) (upholding ban on radio
and television marketing of tobacco). And the absence of
any such precedent is understandable.
Regulatory programs necessarily draw distinctions on
the basis of content. Virginia Bd. of Pharmacy, 425 U.S.,
at 761, 762 (“If there is a kind of commercial speech that
lacks all First Amendment protection, . . . it must be dis
tinguished by its content”). Electricity regulators, for
example, oversee company statements, pronouncements,
and proposals, but only about electricity. See, e.g., Vt.
Pub. Serv. Bd. Rules 3.100 (1983), 4.200 (1986), 5.200
(2004). The Federal Reserve Board regulates the content
of statements, advertising, loan proposals, and interest
rate disclosures, but only when made by financial institu
tions. See 12 CFR pts. 226, 230 (2011). And the FDA
10 SORRELL v. IMS HEALTH INC.
BREYER, J., dissenting
oversees the form and content of labeling, advertising, and
sales proposals of drugs, but not of furniture. See 21 CFR
pts. 201–203. Given the ubiquity of content-based regula
tory categories, why should the “content-based” nature of
typical regulation require courts (other things being equal)
to grant legislators and regulators less deference? Cf.
Board of Trustees of State Univ. of N. Y. v. Fox, 492 U.S.
469, 481 (1989) (courts, in First Amendment area, should
“provide the Legislative and Executive Branches needed
leeway” when regulated industries are at issue).
Nor, in the context of a regulatory program, is it un
usual for particular rules to be “speaker-based,” affecting
only a class of entities, namely, the regulated firms. An
energy regulator, for example, might require the manu
facturers of home appliances to publicize ways to reduce
energy consumption, while exempting producers of indus
trial equipment. See, e.g., 16 CFR pt. 305 (2011) (prescrib
ing labeling requirements for certain home appliances);
Nev. Admin. Code §§704.804, 704.808 (2010) (requiring
utilities to provide consumers with information on conser
vation). Or a trade regulator might forbid a particular
firm to make the true claim that its cosmetic product
contains “cleansing grains that scrub away dirt and ex
cess oil” unless it substantiates that claim with detailed
backup testing, even though opponents of cosmetics use
need not substantiate their claims. Morris, F. T. C. Or
ders Data to Back Ad Claims, N. Y. Times, Nov. 3, 1973,
p. 32; Boys’ Life, Oct. 1973, p. 64; see 36 Fed. Reg. 12058
(1971). Or the FDA might control in detail just what a
pharmaceutical firm can, and cannot, tell potential pur
chasers about its products. Such a firm, for example,
could not suggest to a potential purchaser (say, a doctor)
that he or she might put a pharmaceutical drug to an “off
label” use, even if the manufacturer, in good faith and
with considerable evidence, believes the drug will help.
All the while, a third party (say, a researcher) is free to
Cite as: 564 U. S. ____ (2011) 11
BREYER, J., dissenting
tell the doctor not to use the drug for that purpose. See 21
CFR pt. 99; cf. Buckman Co. v. Plaintiffs’ Legal Comm.,
531 U.S. 341, 350–351 (2001) (discussing effect of similar
regulations in respect to medical devices); see also Pro
posed Rule, Revised Effectiveness Determination; Sun
screen Drug Products for Over-the-Counter Human Use,
76 Fed. Reg. 35672 (2011) (proposing to prohibit market
ing of sunscreens with sun protection factor (SPF) of
greater than 50 due to insufficient data “to indicate that
there is additional clinical benefit”).
If the Court means to create constitutional barriers to
regulatory rules that might affect the content of a com
mercial message, it has embarked upon an unprecedented
task—a task that threatens significant judicial interfer
ence with widely accepted regulatory activity. Cf., e.g., 21
CFR pts. 201–203. Nor would it ease the task to limit its
“heightened” scrutiny to regulations that only affect cer
tain speakers. As the examples that I have set forth
illustrate, many regulations affect only messages sent by a
small class of regulated speakers, for example, electricity
generators or natural gas pipelines.
The Court also uses the words “aimed” and “targeted”
when describing the relation of the statute to drug manu
facturers. Ante, at 8, 9, 12, 16. But, for the reasons just
set forth, to require “heightened” scrutiny on this basis is
to require its application early and often when the State
seeks to regulate industry. Any statutory initiative stems
from a legislative agenda. See, e.g., Message to Congress,
May 24, 1937, H. R. Doc. No. 255, 75th Cong., 1st Sess., 4
(request from President Franklin Roosevelt for legislation
to ease the plight of factory workers). Any administrative
initiative stems from a regulatory agenda. See, e.g., Exec.
Order No. 12866, 58 Fed. Reg. 51735 (1993) (specifying
how to identify regulatory priorities and requiring agen
cies to prepare agendas). The related statutes, regula
tions, programs, and initiatives almost always reflect a
12 SORRELL v. IMS HEALTH INC.
BREYER, J., dissenting
point of view, for example, of the Congress and the ad
ministration that enacted them and ultimately the voters.
And they often aim at, and target, particular firms that
engage in practices about the merits of which the Gov
ernment and the firms may disagree. Section 2 of the
Sherman Act, 15 U.S. C. §2, for example, which limits the
truthful, nonmisleading speech of firms that, due to their
market power, can affect the competitive landscape, is
directly aimed at, and targeted at, monopolists.
In short, the case law in this area reflects the need to
ensure that the First Amendment protects the “market
place of ideas,” thereby facilitating the democratic creation
of sound government policies without improperly hamper
ing the ability of government to introduce an agenda, to
implement its policies, and to favor them to the exclusion
of contrary policies. To apply “heightened” scrutiny when
the regulation of commercial activities (which often in
volve speech) is at issue is unnecessarily to undercut the
latter constitutional goal. The majority’s view of this case
presents that risk.
Moreover, given the sheer quantity of regulatory initia
tives that touch upon commercial messages, the Court’s
vision of its reviewing task threatens to return us to a
happily bygone era when judges scrutinized legislation for
its interference with economic liberty. History shows that
the power was much abused and resulted in the constitu
tionalization of economic theories preferred by individual
jurists. See Lochner v. New York, 198 U.S. 45, 75–76
(1905) (Holmes, J., dissenting). By inviting courts to
scrutinize whether a State’s legitimate regulatory inter
ests can be achieved in less restrictive ways whenever
they touch (even indirectly) upon commercial speech,
today’s majority risks repeating the mistakes of the past
in a manner not anticipated by our precedents. See Cen
tral Hudson, 447 U.S., at 589 (Rehnquist, J., dissenting);
cf. Railroad Comm’n of Tex. v. Rowan & Nichols Oil Co.,
Cite as: 564 U. S. ____ (2011) 13
BREYER, J., dissenting
310 U.S. 573, 580–581 (1940) (“A controversy like this
always calls for fresh reminder that courts must not sub
stitute their notions of expediency and fairness for those
which have guided the agencies to whom the formulation
and execution of policy have been entrusted”).
Nothing in Vermont’s statute undermines the ability of
persons opposing the State’s policies to speak their mind
or to pursue a different set of policy objectives through
the democratic process. Whether Vermont’s regulatory
statute “targets” drug companies (as opposed to affecting
them unintentionally) must be beside the First Amendment
point.
This does not mean that economic regulation having
some effect on speech is always lawful. Courts typically
review the lawfulness of statutes for rationality and of
regulations (if federal) to make certain they are not “arbi
trary, capricious, [or] an abuse of discretion.” 5 U.S. C.
§706(2)(A). And our valuable free-speech tradition may
play an important role in such review. But courts do not
normally view these matters as requiring “heightened”
First Amendment scrutiny—and particularly not the un
forgiving brand of “intermediate” scrutiny employed by
the majority. Because the imposition of “heightened”
scrutiny in such instances would significantly change the
legislative/judicial balance, in a way that would signifi
cantly weaken the legislature’s authority to regulate
commerce and industry, I would not apply a “heightened”
First Amendment standard of review in this case.
III
Turning to the constitutional merits, I believe Vermont’s
statute survives application of Central Hudson’s “interme
diate” commercial speech standard as well as any more
limited “economic regulation” test.
14 SORRELL v. IMS HEALTH INC.
BREYER, J., dissenting
A
The statute threatens only modest harm to commercial
speech. I agree that it withholds from pharmaceutical
companies information that would help those entities
create a more effective selling message. But I cannot
agree with the majority that the harm also involves unjus
tified discrimination in that it permits “pharmacies” to
“share prescriber-identifying information with anyone for
any reason” (but marketing). Ante, at 17. Whatever the
First Amendment relevance of such discrimination, there
is no evidence that it exists in Vermont. The record con
tains no evidence that prescriber-identifying data is
widely disseminated. See App. 248, 255. Cf. Burson v.
Freeman, 504 U.S. 191, 207 (1992) (plurality opinion)
(“States adopt laws to address the problems that confront
them. The First Amendment does not require States to
regulate for problems that do not exist”); Bates v. State
Bar of Ariz., 433 U.S. 350, 380 (1977) (“[T]he justification
for the application of overbreadth analysis applies weakly,
if at all, in the ordinary commercial context”).
The absence of any such evidence likely reflects the
presence of other legal rules that forbid widespread
release of prescriber-identifying information. Vermont’s
Pharmacy Rules, for example, define “unprofessional
conduct” to include “[d]ivulging or revealing to unauthor
ized persons patient or practitioner information or the
nature of professional pharmacy services rendered.” Rule
20.1(i) (emphasis added); see also Reply Brief for Petition
ers 21. The statute reinforces this prohibition where
pharmaceutical marketing is at issue. And the exceptions
that it creates are narrow and concern common and often
essential uses of prescription data. See Vt. Stat. Ann., Tit.
18, §4631(e)(1) (pharmacy reimbursement, patient care
management, health care research); §4631(e)(2) (drug
dispensing); §4631(e)(3) (communications between pre
scriber and pharmacy); §4631(e)(4) (information to pa
Cite as: 564 U. S. ____ (2011) 15
BREYER, J., dissenting
tients); §§4631(e)(5)–(6) (as otherwise provided by state or
federal law). Cf. Trans Union Corp., 245 F.3d, at 819
(rejecting an underinclusiveness challenge because an
exception to the Fair Credit Reporting Act concerned
“ ‘exactly the sort of thing the Act seeks to promote’ ” (quot
ing Trans Union Corp. v. FTC, 81 F.3d 228, 234 (CADC
1996)).
Nor can the majority find record support for its claim
that the statute helps “favored” speech and imposes a
“burde[n]” upon “disfavored speech by disfavored speak
ers.” Ante, at 19. The Court apparently means that the
statute (1) prevents pharmaceutical companies from creat
ing individualized messages that would help them sell
their drugs more effectively, but (2) permits “counterde
tailing” programs, which often promote generic drugs, to
create such messages using prescriber-identifying data. I
am willing to assume, for argument’s sake, that this con
sequence would significantly increase the statute’s nega
tive impact upon commercial speech. But cf. 21 CFR
§§202.1(e)(1), 202.1(e)(5)(ii) (FDA’s “fair balance” require
ment); App. 193 (no similar FDA requirement for nondrug
manufacturers). The record before us, however, contains
no evidentiary basis for the conclusion that any such
individualized counterdetailing is widespread, or exists at
all, in Vermont.
The majority points out, ante, at 4, that Act 80, of which
§4631 was a part, also created an “evidence-based pre
scription drug education program,” in which the Vermont
Department of Health, the Department of Vermont Health
Access, and the University of Vermont, among others,
work together “to provide information and education on
the therapeutic and cost-effective utilization of prescrip
tion drugs” to health professionals responsible for pre
scribing and dispensing prescription drugs, Vt. Stat. Ann.,
Tit. 18, §4622(a)(1). See generally §§4621–4622. But that
program does not make use of prescriber-identifying data.
16 SORRELL v. IMS HEALTH INC.
BREYER, J., dissenting
Reply Brief for Petitioners 11.
The majority cites testimony by two witnesses in sup
port of its statement that “States themselves may supply
the prescriber-identifying information used in [counterde
tailing] programs.” Ante, at 4. One witness explained that
academic detailers in Pennsylvania work with state health
officials to identify physicians serving patients whose
health care is likewise state provided. App. 375. The
other, an IMS Health officer, observed that Vermont has
its own multipayer database containing prescriber
identifying data, which could be used to talk to doctors
about their prescription patterns and the lower costs
associated with generics. Id., at 313. But nothing in the
record indicates that any “counterdetailing” of this kind
has ever taken place in fact in Vermont. State-sponsored
health care professionals sometimes meet with small
groups of doctors to discuss best practices and generic
drugs generally. See University of Vermont, College of
Medicine, Office of Primary Care, Vermont Academic
Detailing Program (July 2010), http://www.med.uvm.edu/
ahec/downloads/VTAD_overview_2010.07.08.pdf (all Inter
net materials as visited June 21, 2011, and available in
Clerk of Court’s case file). Nothing in Vermont’s statute
prohibits brand-name manufacturers from undertaking a
similar effort.
The upshot is that the only commercial-speech-related
harm that the record shows this statute to have brought
about is the one I have previously described: The with
holding of information collected through a regulatory
program, thereby preventing companies from shaping a
commercial message they believe maximally effective. The
absence of precedent suggesting that this kind of harm
is serious reinforces the conclusion that the harm here is
modest at most.
Cite as: 564 U. S. ____ (2011) 17
BREYER, J., dissenting
B
The legitimate state interests that the statute serves are
“substantial.” Central Hudson, 447 U.S., at 564. Ver
mont enacted its statute
“to advance the state’s interest in protecting the pub
lic health of Vermonters, protecting the privacy of
prescribers and prescribing information, and to en
sure costs are contained in the private health care
sector, as well as for state purchasers of prescription
drugs, through the promotion of less costly drugs and
ensuring prescribers receive unbiased information.”
§4631(a).
These objectives are important. And the interests they
embody all are “neutral” in respect to speech. Cf. ante, at
24.
The protection of public health falls within the tradi
tional scope of a State’s police powers. Hillsborough
County v. Automated Medical Laboratories, Inc., 471 U.S.
707, 719 (1985). The fact that the Court normally exempts
the regulation of “misleading” and “deceptive” information
even from the rigors of its “intermediate” commercial
speech scrutiny testifies to the importance of securing
“unbiased information,” see 44 Liquormart, 517 U.S., at
501 (opinion of Stevens, J.); Central Hudson, supra, at
563, as does the fact that the FDA sets forth as a federal
regulatory goal the need to ensure a “fair balance” of
information about marketed drugs, 21 CFR §§202.1(e)(1),
202.1(e)(5)(ii). As major payers in the health care system,
health care spending is also of crucial state interest. And
this Court has affirmed the importance of maintaining
“privacy” as an important public policy goal—even in
respect to information already disclosed to the public for
particular purposes (but not others). See Department of
Justice v. Reporters Comm. for Freedom of Press, 489 U.S.
749, 762–771 (1989); see also Solove, A Taxonomy of Pri
18 SORRELL v. IMS HEALTH INC.
BREYER, J., dissenting
vacy, 154 U. Pa. L. Rev. 477, 520–522 (2006); cf. NASA v.
Nelson, 562 U. S. ___, ___–___ (2011) (slip op., at 8–9)
(discussing privacy interests in nondisclosure).
At the same time, the record evidence is sufficient to
permit a legislature to conclude that the statute “directly
advances” each of these objectives. The statute helps to
focus sales discussions on an individual drug’s safety,
effectiveness, and cost, perhaps compared to other drugs
(including generics). These drug-related facts have every
thing to do with general information that drug manufac
turers likely possess. They have little, if anything, to do
with the name or prior prescription practices of the par
ticular doctor to whom a detailer is speaking. Shaping a
detailing message based on an individual doctor’s prior
prescription habits may help sell more of a particular
manufacturer’s particular drugs. But it does so by divert
ing attention from scientific research about a drug’s safety
and effectiveness, as well as its cost. This diversion comes
at the expense of public health and the State’s fiscal
interests.
Vermont compiled a substantial legislative record to
corroborate this line of reasoning. See Testimony of Sean
Flynn (Apr. 11, 2007), App. in No. 09–1913–cv(L) etc.
(CA2), p. A–1156 (hereinafter CA2 App.) (use of data
mining helps drug companies “to cover up information
that is not in the best of light of their drug and to high
light information that makes them look good”); Volker &
Outterson, New Legislative Trends Threaten the Way
Health Information Companies Operate, Pharmaceutical
Pricing & Reimbursement 2007, id., at A–4235 (one for
mer detailer considered prescriber-identifying data the
“ ‘greatest tool in planning our approach to manipulating
doctors’ ” (quoting Whitney, Big (Brother) Pharma: How
Drug Reps Know Which Doctors to Target, New Republic,
Aug. 29, 2006, http://www.tnr.com/article/84056/health
care-eli-lilly-pfizer-ama); Testimony of Paul Harrington
Cite as: 564 U. S. ____ (2011) 19
BREYER, J., dissenting
(May 3, 2007), id., at A–1437 (describing data mining
practices as “secret and manipulative activities by the
marketers”); Testimony of Julie Brill (May 3, 2007), id., at
A–1445 (restrictions on data mining “ensur[e] that the
FDA’s requirement of doctors receiving fair and balanced
information actually occurs”); Written Statement of Jerry
Avorn & Aaron Kesselheim, id., at A–4310 (citing studies
that “indicate that more physician-specific detailing will
lead to more prescriptions of brand-name agents, often
with no additional patient benefit but at much higher cost
to patients and to state-based insurance programs, which
will continue to drive up the cost of health care”); id., at
4311 (“Making it more difficult for manufacturers to tailor
their marketing strategies to the prescribing histories of
individual physicians would actually encourage detailers
to present physicians with a more neutral description of
the product”); see also Record in No. 1:07–cv–00188–jgm
(D Vt.), Doc. 414, pp. 53–57, 64 (hereinafter Doc. 414)
(summarizing record evidence).
These conclusions required the legislature to make
judgments about whether and how to ameliorate these
problems. And it is the job of regulatory agencies and
legislatures to make just these kinds of judgments. Ver
mont’s attempts to ensure a “fair balance” of information
is no different from the FDA’s similar requirement, see
21 CFR §§202.1(e)(1), 202.1(e)(5)(ii). No one has yet sug
gested that substantial portions of federal drug regulation
are unconstitutional. Why then should we treat Vermont’s
law differently?
The record also adequately supports the State’s privacy
objective. Regulatory rules in Vermont make clear that
the confidentiality of an individual doctor’s prescribing
practices remains the norm. See, e.g., Pharmacy Rule
8.7(c) (“Prescription and other patient health care infor
mation shall be secure from access by the public, and the
information shall be kept confidential”); Pharmacy Rule
20 SORRELL v. IMS HEALTH INC.
BREYER, J., dissenting
20.1(i) (forbidding disclosure of patient or prescriber in
formation to “unauthorized persons” without consent).
Exceptions to this norm are comparatively few. See, e.g.,
ibid. (identifying “authorized persons”); Vt. Stat. Ann., Tit.
18, §4631(e); App. 248, 255 (indicating that prescriber
identifying data is not widely disseminated). There is no
indication that the State of Vermont, or others in the
State, makes use of this information for counterdetailing
efforts. See supra, at 15.
Pharmaceutical manufacturers and the data miners
who sell information to those manufacturers would like to
create (and did create) an additional exception, which
means additional circulation of otherwise largely confi
dential information. Vermont’s statute closes that door.
At the same time, the statute permits doctors who wish
to permit use of their prescribing practices to do so.
§§4631(c)–(d). For purposes of Central Hudson, this would
seem sufficiently to show that the statute serves a mean
ingful interest in increasing the protection given to pre
scriber privacy. See Fox, 492 U.S., at 480 (in commercial
speech area, First Amendment requires “a fit that is not
necessarily perfect, but reasonable; that represents not
necessarily the single best disposition but one whose scope
is in proportion to the interest served” (internal quotation
marks omitted)); see also United States v. Edge Broadcast
ing Co., 509 U.S. 418, 434 (1993) (The First Amendment
does not “require that the Government make progress on
every front before it can make progress on any front”);
Burson, 504 U.S., at 207 (plurality opinion).
C
The majority cannot point to any adequately supported,
similarly effective “more limited restriction.” Central
Hudson, 447 U.S., at 564. It says that doctors “can, and
often do, simply decline to meet with detailers.” Ante, at
20. This fact, while true, is beside the point. Closing the
Cite as: 564 U. S. ____ (2011) 21
BREYER, J., dissenting
office door entirely has no similar tendency to lower costs
(by focusing greater attention upon the comparative ad
vantages and disadvantages of generic drug alternatives).
And it would not protect the confidentiality of information
already released to, say, data miners. In any event, physi
cians are unlikely to turn detailers away at the door, for
those detailers, whether delivering a balanced or imbal
anced message, are nonetheless providers of much useful
information. See Manchanda & Honka, The Effects and
Role of Direct-to-Physician Marketing in the Pharmaceuti
cal Industry: An Integrative Review, 5 Yale J. Health Pol’y
L. & Ethics 785, 793–797, 815–816 (2005); Ziegler, Lew, &
Singer, The Accuracy of Drug Information from Pharma
ceutical Sales Representatives, 273 JAMA 1296 (1995).
Forcing doctors to choose between targeted detailing and
no detailing at all could therefore jeopardize the State’s
interest in promoting public health.
The majority also suggests that if the “statute provided
that prescriber-identifying information could not be sold or
disclosed except in narrow circumstances then the State
might have a stronger position.” Ante, at 24–25; see also
ante, at 17. But the disclosure-permitting exceptions here
are quite narrow, and they serve useful, indeed essential
purposes. See supra, at 14. Compare Vt. Stat. Ann., Tit.
18, §4631(e) with note following 42 U.S. C. §1320d–2, p.
1190, and 45 CFR §164.512 (uses and disclosures not
requiring consent under the Health Insurance Portability
and Accountability Act of 1996). Regardless, this alterna
tive is not “a more limited restriction,” Central Hudson,
supra, at 564 (emphasis added), for it would impose a
greater, not a lesser, burden upon the dissemination of
information.
Respondents’ alternatives are no more helpful. Respon
dents suggest that “Vermont can simply inform physicians
that pharmaceutical companies . . . use prescription his
tory information to communicate with doctors.” Brief for
22 SORRELL v. IMS HEALTH INC.
BREYER, J., dissenting
Respondent Pharmaceutical Research and Manufacturers
of America 48. But how would that help serve the State’s
basic purposes? It would not create the “fair balance” of
information in pharmaceutical marketing that the State,
like the FDA, seeks. Cf. Reno v. American Civil Liberties
Union, 521 U.S. 844, 874 (1997) (alternative must be “at
least as effective in achieving the legitimate purpose that
the statute was enacted to serve”). Respondents also
suggest policies requiring use of generic drugs or educat
ing doctors about their benefits. Brief for Respondent
Pharmaceutical Research and Manufacturers of America
54–55. Such programs have been in effect for some time
in Vermont or other States, without indication that they
have prevented the imbalanced sales tactics at which
Vermont’s statute takes aim. See, e.g., Written Statement
of Jerry Avorn & Aaron Kesselheim, CA2 App. 4310; Doc.
414, at 60–61. And in any event, such laws do not help
protect prescriber privacy.
Vermont has thus developed a record that sufficiently
shows that its statute meaningfully furthers substantial
state interests. Neither the majority nor respondents
suggests any equally effective “more limited” restriction.
And the First Amendment harm that Vermont’s statute
works is, at most, modest. I consequently conclude that,
even if we apply an “intermediate” test such as that in
Central Hudson, this statute is constitutional.
IV
What about the statute’s third restriction, providing
that “[p]harmaceutical manufacturers and pharmaceutical
marketers” may not “use prescriber-identifiable informa
tion for marketing or promoting a prescription drug unless
the prescriber consents”? Vt. Stat. Ann., Tit. 18, §4631(d)
(emphasis added). In principle, I should not reach this
question. That is because respondent pharmaceutical
manufacturers, marketers, and data miners seek a de
Cite as: 564 U. S. ____ (2011) 23
BREYER, J., dissenting
claratory judgment and injunction prohibiting the en
forcement of this statute. See 28 U.S. C. §2201; App. 49–
128. And they have neither shown nor claimed that they
could obtain significant amounts of “prescriber-identifiable
information” if the first two prohibitions are valid. If, as
I believe, the first two statutory prohibitions (related to
selling and disclosing the information) are valid, then
the dispute about the validity of the third provision is
not “ ‘real and substantial’ ” or “ ‘definite and concrete.’ ”
MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127
(2007) (quoting Aetna Life Ins. Co. v. Haworth, 300 U.S.
227, 240–241 (1937)) (Article III does not permit courts to
entertain such disputes).
The Court, however, strikes down all three provisions,
and so I add that I disagree with the majority as to the
constitutionality of the third restriction as well—basically
for the reasons I have already set out. The prohibition
against pharmaceutical firms using this prescriber
identifying information works no more than modest First
Amendment harm; the prohibition is justified by the need
to ensure unbiased sales presentations, prevent unneces
sarily high drug costs, and protect the privacy of prescrib
ing physicians. There is no obvious equally effective, more
limited alternative.
V
In sum, I believe that the statute before us satisfies the
“intermediate” standards this Court has applied to restric
tions on commercial speech. A fortiori it satisfies less
demanding standards that are more appropriately applied
in this kind of commercial regulatory case—a case where
the government seeks typical regulatory ends (lower drug
prices, more balanced sales messages) through the use of
ordinary regulatory means (limiting the commercial use
of data gathered pursuant to a regulatory mandate). The
speech-related consequences here are indirect, incidental,
24 SORRELL v. IMS HEALTH INC.
BREYER, J., dissenting
and entirely commercial. See supra, at 6–9.
The Court reaches its conclusion through the use of
important First Amendment categories—“content-based,”
“speaker-based,” and “neutral”—but without taking full
account of the regulatory context, the nature of the speech
effects, the values these First Amendment categories seek
to promote, and prior precedent. See supra, at 2–6, 9–13,
17. At best the Court opens a Pandora’s Box of First
Amendment challenges to many ordinary regulatory
practices that may only incidentally affect a commercial
message. See, e.g., supra, at 7–8, 9–11. At worst, it re
awakens Lochner’s pre-New Deal threat of substituting
judicial for democratic decisionmaking where ordinary
economic regulation is at issue. See Central Hudson, 447
U.S., at 589 (Rehnquist, J., dissenting).
Regardless, whether we apply an ordinary commercial
speech standard or a less demanding standard, I believe
Vermont’s law is consistent with the First Amendment.
And with respect, I dissent | The Vermont statute before us adversely affects expres sion in one, and only one, way. It deprives pharmaceutical and data-mining companies of data, collected pursuant to the government’s regulatory mandate, that could help pharmaceutical companies create better sales messages. In my view, this effect on expression is inextricably related to a lawful governmental effort to regulate a commercial enterprise. The First Amendment does not require courts to apply a special “heightened” standard of review when reviewing such an effort. And, in any event, the statute meets the First Amendment standard this Court has previously applied when the government seeks to regulate commercial speech. For any or all of these reasons, the Court should uphold the statute as constitutional. I The Vermont statute before us says pharmacies and certain other entities “shall not [1] sell regulated records containing prescriber-identifiable information, nor [2] permit the use of [such] records for marketing or promoting a prescription drug, unless the prescriber consents.” Vt. Stat. Ann., Tit. 18, (Supp. 2010). 2 SORRELL v. IMS HEALTH INC. BREYER, J., dissenting It also says that “[3] [p]harmaceutical manufacturers and pharmaceu tical marketers shall not use prescriber-identifiable information for marketing or promoting a prescription drug unless the prescriber consents.” For the most part, I shall focus upon the first and second of these prohibitions. In Part IV, I shall explain why the third prohibition makes no difference to the result. II In v. Wileman Brothers & Elliott, Inc., 521 U.S. 457 this Court considered the First Amend ment’s application to federal agricultural commodity mar keting regulations that required growers of fruit to make compulsory contributions to pay for collective adver tising. The Court reviewed the lawfulness of the regula tion’s negative impact on the growers’ freedom voluntarily to choose their own commercial messages “under the standard appropriate for the review of economic regula tion.” In this case I would ask whether Vermont’s regulatory provisions work harm to First Amendment interests that is disproportionate to their furtherance of legitimate regu latory objectives. And in doing so, I would give significant weight to legitimate commercial regulatory objectives—as this Court did in The far stricter, specially “heightened” First Amendment standards that the major ity would apply to this instance of commercial regulation are out of place here. Ante, at 1, 8, 9, 10, 11, 13, 14, 15. A Because many, perhaps most, activities of human beings living together in communities take place through speech, and because speech-related risks and offsetting justifica tions differ depending upon context, this Court has distin guished for First Amendment purposes among different Cite as: 564 U. S. (2011) 3 BREYER, J., dissenting contexts in which speech takes place. See, Snyder v. Phelps, 562 U. S. – (2011) (slip op., at 5–6). Thus, the First Amendment imposes tight constraints upon government efforts to restrict, “core” political speech, while imposing looser constraints when the gov ernment seeks to restrict, commercial speech, the speech of its own employees, or the regulation-related speech of a firm subject to a traditional regulatory pro gram. Compare (political speech), with Central Gas & Elec. v. Public Serv. Comm’n of N. Y., (commercial speech), (government employees), and (economic regulation). These test-related distinctions reflect the constitutional importance of maintaining a free marketplace of ideas, a marketplace that provides access to “social, political, esthetic, moral, and other ideas and experiences.” Red Lion Broadcasting ; see (Holmes, J., dissenting). Without such a marketplace, the public could not freely choose a government pledged to implement policies that reflect the people’s informed will. At the same time, our cases make clear that the First Amendment offers considerably less protection to the maintenance of a free marketplace for goods and services. See Florida (“We have always been careful to distinguish com mercial speech from speech at the First Amendment’s core”). And they also reflect the democratic importance of permitting an elected government to implement through effective programs policy choices for which the people’s elected representatives have voted. Thus this Court has recognized that commercial speech including advertising has an “informational function” and 4 SORRELL v. IMS HEALTH INC. BREYER, J., dissenting is not “valueless in the marketplace of ideas.” Central ; 826 (1975). But at the same time it has applied a less than strict, “intermediate” First Amendment test when the government directly restricts commercial speech. Under that test, government laws and regulations may significantly restrict speech, as long as they also “directly advance” a “substantial” government interest that could not “be served as well by a more limited restriction.” Central Moreover, the Court has found that “sales practices” that are “misleading, decep tive, or aggressive” lack the protection of even this “inter mediate” standard. 44 Liquormart, ; see also Central ; Virginia Bd. of v. Virginia Citizens Consumer Council, Inc., 772 (1976). And the Court has emphasized the need, in applying an “intermediate” test, to maintain the “ ‘commonsense’ distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech.” (quoting Virginia Bd. of ; emphasis added). The Court has also normally applied a yet more lenient approach to ordinary commercial or regulatory legislation that affects speech in less direct ways. In doing so, the Court has taken account of the need in this area of law to defer significantly to legislative judgment—as the Court has done in cases involving the Commerce Clause or the Due Process Clause. See at 475–476. “Our function” in such cases, Justice Brandeis said, “is only to determine the reasonableness of the legislature’s belief in the existence of evils and in the effectiveness of Cite as: 564 U. S. (2011) 5 BREYER, J., dissenting the remedy provided.” New State Ice Co. v. Liebmann, 285 U.S. 262, 286–287 (1932) (dissenting opinion); Williamson v. Lee Optical of Okla., Inc., (“It is enough that there is an evil at hand for correction, and that it might be thought that the particular legisla tive measure was a rational way to correct it”); United States v. Carolene Products Co., (“[R]egulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional” if it rests “upon some rational basis within the knowledge and experience of the legislators”). To apply a strict First Amendment standard virtually as a matter of course when a court reviews ordinary economic regulatory programs (even if that program has a modest impact upon a firm’s ability to shape a commercial mes sage) would work at cross-purposes with this more basic constitutional approach. Since ordinary regulatory pro grams can affect speech, particularly commercial speech, in myriad ways, to apply a “heightened” First Amendment standard of review whenever such a program burdens speech would transfer from legislatures to judges the primary power to weigh ends and to choose means, threat ening to distort or undermine legitimate legislative ob jectives. See (“Doubts con cerning the policy judgments that underlie” a program requiring fruit growers to pay for advertising they dis agree with does not “justify reliance on the First Amend ment as a basis for reviewing economic regulations”). Cf. 560– 562 (2005) (applying less scrutiny when the compelled speech is made by the Government); United States v. United Inc., (applying greater scrutiny where compelled speech was not “ancil lary to a more comprehensive program restricting market ing autonomy”). To apply a “heightened” standard of review in such cases as a matter of course would risk what 6 SORRELL v. IMS HEALTH INC. BREYER, J., dissenting then-Justice Rehnquist, dissenting in Central described as a “retur[n] to the bygone era of in which it was common practice for this Court to strike down economic regulations adopted by a State based on the Court’s own notions of the most appropriate means for the State to imple ment its considered policies.” B There are several reasons why the Court should review Vermont’s law “under the standard appropriate for the review of economic regulation,” not “under a heightened standard appropriate for the review of First Amendment issues.” 521 U.S., For one thing, Ver mont’s statute neither forbids nor requires anyone to say anything, to engage in any form of symbolic speech, or to endorse any particular point of view, whether ideological or related to the sale of a product. Cf. –470. (And I here assume that Central might otherwise apply. See Part III, infra.) For another thing, the same First Amendment stan dards that apply to Vermont here would apply to similar regulatory actions taken by other States or by the Federal Government acting, for example, through Food and Drug Administration (FDA) regulation. (And the Federal Gov ernment’s ability to pre-empt state laws that interfere with existing or contemplated federal forms of regulation is here irrelevant.) Further, the statute’s requirements form part of a tra ditional, comprehensive regulatory regime. Cf. United at The pharmaceutical drug industry has been heavily regulated at least since 1906. See Pure Food and Drugs Act, Longstanding statutes and regulations require pharmaceutical companies to engage in complex drug testing to ensure that their drugs Cite as: 564 U. S. (2011) 7 BREYER, J., dissenting are both “safe” and “effective.” 21 U.S. C. 355(d). Only then can the drugs be marketed, at which point drug companies are subject to the FDA’s exhaustive regulation of the content of drug labels and the manner in which drugs can be advertised and sold. 21 CFR pts. 201–203 (2010). Finally, Vermont’s statute is directed toward informa tion that exists only by virtue of government regulation. Under federal law, certain drugs can be dispensed only by a pharmacist operating under the orders of a medical practitioner. 21 U.S. C. Vermont regulates the qualifications, the fitness, and the practices of pharma cists themselves, and requires pharmacies to maintain a “patient record system” that, among other things, tracks who prescribed which drugs. Vt. Stat. Ann., Tit. 26, 2022(14) (Supp. 2010); Vt. Bd. of Admin. Rules ( Rules) 9.1, 9.24(e) (2009). But for these regulations, pharmacies would have no way to know who had told customers to buy which drugs (as is the case when a doctor tells a patient to take a daily dose of aspirin). Regulators will often find it necessary to create tailored restrictions on the use of information subject to their regulatory jurisdiction. A car dealership that obtains credit scores for customers who want car loans can be prohibited from using credit data to search for new cus tomers. See 15 U.S. C. (2006 ed. and Supp. III); cf. Trans Union reh’g denied, Medical specialists who obtain medical records for their existing patients cannot purchase those records in order to identify new patients. See (a)(3) (2010). Or, speaking hypo thetically, a public utilities commission that directs local gas distributors to gather usage information for individual customers might permit the distributors to share the data with researchers (trying to lower energy costs) but forbid 8 SORRELL v. IMS HEALTH INC. BREYER, J., dissenting sales of the data to appliance manufacturers seeking to sell gas stoves. Such regulatory actions are subject to judicial review, for compliance with applicable statutes. And they would normally be subject to review under the Adminis trative Procedure Act to make certain they are not “arbi trary, capricious, [or] an abuse of discretion.” 5 U.S. C. (2006 ed.). In an appropriate case, such review might be informed by First Amendment considerations. But regulatory actions of the kind present here have not previously been thought to raise serious additional consti tutional concerns under the First Amendment. But cf. Trans Union (KENNEDY, J., dissenting from denial of certiorari) (questioning ban on use of consumer credit reports for target marketing). The ease with which one can point to actual or hypothet ical examples with potentially adverse speech-related effects at least roughly comparable to those at issue here indicates the danger of applying a “heightened” or “inter mediate” standard of First Amendment review where typical regulatory actions affect commercial speech (say, by withholding information that a commercial speaker might use to shape the content of a message). Thus, it is not surprising that, until today, this Court has never found that the First Amendment prohibits the government from restricting the use of information gath ered pursuant to a regulatory mandate—whether the information rests in government files or has remained in the hands of the private firms that gathered it. But cf. ante, at 11–14. Nor has this Court ever previously applied any form of “heightened” scrutiny in any even roughly similar case. See Los Angeles Police Dept. v. United Re porting Publishing (no height ened scrutiny); compare (“[C]ommercial speech can be subject to greater governmental regulation than non Cite as: 564 U. S. (2011) 9 BREYER, J., dissenting commercial speech” because of the government’s “interest in preventing commercial harms”), with ante, at 9–10, 11, 17–18, 24 (suggesting that Discovery Network supports heightened scrutiny when regulations target commercial speech). C The Court (suggesting a standard yet stricter than Central ) says that we must give content-based restrictions that burden speech “heightened” scrutiny. It adds that “[c]ommercial speech is no exception.” Ante, at 10–11. And the Court then emphasizes that this is a case involving both “content-based” and “speaker-based” restrictions. See ante, at 8, 9, 10, 12, 14, 15, 16, 19, 20, 22, 24. But neither of these categories—“content-based” nor “speaker-based”—has ever before justified greater scrutiny when regulatory activity affects commercial speech. See, Capital Broadcasting Co. v. Mitchell, 333 F. Supp. 582 (DC 1971) (three-judge court), summarily aff’d sub nom. Capital Broadcasting (upholding ban on radio and television marketing of tobacco). And the absence of any such precedent is understandable. Regulatory programs necessarily draw distinctions on the basis of content. Virginia Bd. of 425 U.S., at 761, 762 (“If there is a kind of commercial speech that lacks all First Amendment protection, it must be dis tinguished by its content”). Electricity regulators, for example, oversee company statements, pronouncements, and proposals, but only about electricity. See, Vt. Pub. Serv. Bd. Rules 3.100 (1983), 4.200 (1986), 5.200 (2004). The Federal Reserve Board regulates the content of statements, advertising, loan proposals, and interest rate disclosures, but only when made by financial institu tions. See 12 CFR pts. 226, 230 (2011). And the FDA 10 SORRELL v. IMS HEALTH INC. BREYER, J., dissenting oversees the form and content of labeling, advertising, and sales proposals of drugs, but not of furniture. See 21 CFR pts. 201–203. Given the ubiquity of content-based regula tory categories, why should the “content-based” nature of typical regulation require courts (other things being equal) to grant legislators and regulators less deference? Cf. Board of Trustees of State Univ. of N. Y. v. 492 U.S. 469, 481 (1989) (courts, in First Amendment area, should “provide the Legislative and Executive Branches needed leeway” when regulated industries are at issue). Nor, in the context of a regulatory program, is it un usual for particular rules to be “speaker-based,” affecting only a class of entities, namely, the regulated firms. An energy regulator, for example, might require the manu facturers of home appliances to publicize ways to reduce energy consumption, while exempting producers of indus trial equipment. See, 16 CFR pt. 305 (2011) (prescrib ing labeling requirements for certain home appliances); 704.808 (2010) (requiring utilities to provide consumers with information on conser vation). Or a trade regulator might forbid a particular firm to make the true claim that its cosmetic product contains “cleansing grains that scrub away dirt and ex cess oil” unless it substantiates that claim with detailed backup testing, even though opponents of cosmetics use need not substantiate their claims. Morris, F. T. C. Or ders Data to Back Ad Claims, N. Y. Times, Nov. 3, 1973, p. 32; Boys’ Life, Oct. 1973, p. 64; see (1971). Or the FDA might control in detail just what a pharmaceutical firm can, and cannot, tell potential pur chasers about its products. Such a firm, for example, could not suggest to a potential purchaser (say, a doctor) that he or she might put a pharmaceutical drug to an “off label” use, even if the manufacturer, in good faith and with considerable evidence, believes the drug will help. All the while, a third party (say, a researcher) is free to Cite as: 564 U. S. (2011) 11 BREYER, J., dissenting tell the doctor not to use the drug for that purpose. See 21 CFR pt. 99; cf. Buckman (discussing effect of similar regulations in respect to medical devices); see also Pro posed Rule, Revised Effectiveness Determination; Sun screen Drug Products for Over-the-Counter Human Use, (2011) (proposing to prohibit market ing of sunscreens with sun protection factor (SPF) of greater than 50 due to insufficient data “to indicate that there is additional clinical benefit”). If the Court means to create constitutional barriers to regulatory rules that might affect the content of a com mercial message, it has embarked upon an unprecedented task—a task that threatens significant judicial interfer ence with widely accepted regulatory activity. Cf., 21 CFR pts. 201–203. Nor would it ease the task to limit its “heightened” scrutiny to regulations that only affect cer tain speakers. As the examples that I have set forth illustrate, many regulations affect only messages sent by a small class of regulated speakers, for example, electricity generators or natural gas pipelines. The Court also uses the words “aimed” and “targeted” when describing the relation of the statute to drug manu facturers. Ante, at 8, 9, 12, 16. But, for the reasons just set forth, to require “heightened” scrutiny on this basis is to require its application early and often when the State seeks to regulate industry. Any statutory initiative stems from a legislative agenda. See, Message to Congress, May 24, 1937, H. R. Doc. No. 255, 75th Cong., 1st Sess., 4 (request from President Franklin Roosevelt for legislation to ease the plight of factory workers). Any administrative initiative stems from a regulatory agenda. See, Exec. Order No. 12866, (specifying how to identify regulatory priorities and requiring agen cies to prepare agendas). The related statutes, regula tions, programs, and initiatives almost always reflect a 12 SORRELL v. IMS HEALTH INC. BREYER, J., dissenting point of view, for example, of the Congress and the ad ministration that enacted them and ultimately the voters. And they often aim at, and target, particular firms that engage in practices about the merits of which the Gov ernment and the firms may disagree. Section 2 of the Sherman Act, 15 U.S. C. for example, which limits the truthful, nonmisleading speech of firms that, due to their market power, can affect the competitive landscape, is directly aimed at, and targeted at, monopolists. In short, the case law in this area reflects the need to ensure that the First Amendment protects the “market place of ideas,” thereby facilitating the democratic creation of sound government policies without improperly hamper ing the ability of government to introduce an agenda, to implement its policies, and to favor them to the exclusion of contrary policies. To apply “heightened” scrutiny when the regulation of commercial activities (which often in volve speech) is at issue is unnecessarily to undercut the latter constitutional goal. The majority’s view of this case presents that risk. Moreover, given the sheer quantity of regulatory initia tives that touch upon commercial messages, the Court’s vision of its reviewing task threatens to return us to a happily bygone era when judges scrutinized legislation for its interference with economic liberty. History shows that the power was much abused and resulted in the constitu tionalization of economic theories preferred by individual jurists. See 75–76 (Holmes, J., dissenting). By inviting courts to scrutinize whether a State’s legitimate regulatory inter ests can be achieved in less restrictive ways whenever they touch (even indirectly) upon commercial speech, today’s majority risks repeating the mistakes of the past in a manner not anticipated by our precedents. See Cen tral ; cf. Railroad Comm’n of Tex. v. Rowan & Nichols Oil Co., Cite as: 564 U. S. (2011) 13 BREYER, J., dissenting (“A controversy like this always calls for fresh reminder that courts must not sub stitute their notions of expediency and fairness for those which have guided the agencies to whom the formulation and execution of policy have been entrusted”). Nothing in Vermont’s statute undermines the ability of persons opposing the State’s policies to speak their mind or to pursue a different set of policy objectives through the democratic process. Whether Vermont’s regulatory statute “targets” drug companies (as opposed to affecting them unintentionally) must be beside the First Amendment point. This does not mean that economic regulation having some effect on speech is always lawful. Courts typically review the lawfulness of statutes for rationality and of regulations (if federal) to make certain they are not “arbi trary, capricious, [or] an abuse of discretion.” 5 U.S. C. And our valuable free-speech tradition may play an important role in such review. But courts do not normally view these matters as requiring “heightened” First Amendment scrutiny—and particularly not the un forgiving brand of “intermediate” scrutiny employed by the majority. Because the imposition of “heightened” scrutiny in such instances would significantly change the legislative/judicial balance, in a way that would signifi cantly weaken the legislature’s authority to regulate commerce and industry, I would not apply a “heightened” First Amendment standard of review in this case. III Turning to the constitutional merits, I believe Vermont’s statute survives application of Central ’s “interme diate” commercial speech standard as well as any more limited “economic regulation” test. 14 SORRELL v. IMS HEALTH INC. BREYER, J., dissenting A The statute threatens only modest harm to commercial speech. I agree that it withholds from pharmaceutical companies information that would help those entities create a more effective selling message. But I cannot agree with the majority that the harm also involves unjus tified discrimination in that it permits “pharmacies” to “share prescriber-identifying information with anyone for any reason” (but marketing). Ante, at 17. Whatever the First Amendment relevance of such discrimination, there is no evidence that it exists in Vermont. The record con tains no evidence that prescriber-identifying data is widely disseminated. See App. 248, 255. Cf. v. Freeman, (“States adopt laws to address the problems that confront them. The First Amendment does not require States to regulate for problems that do not exist”); (“[T]he justification for the application of overbreadth analysis applies weakly, if at all, in the ordinary commercial context”). The absence of any such evidence likely reflects the presence of other legal rules that forbid widespread release of prescriber-identifying information. Vermont’s Rules, for example, define “unprofessional conduct” to include “[d]ivulging or revealing to unauthor ized persons patient or practitioner information or the nature of professional pharmacy services rendered.” Rule 20.1(i) ; see also Reply Brief for Petition ers 21. The statute reinforces this prohibition where pharmaceutical marketing is at issue. And the exceptions that it creates are narrow and concern common and often essential uses of prescription data. See Vt. Stat. Ann., Tit. 18, (pharmacy reimbursement, patient care management, health care research); (drug dispensing); (communications between pre scriber and pharmacy); (information to pa Cite as: 564 U. S. (2011) 15 BREYER, J., dissenting tients); (as otherwise provided by state or federal law). Cf. Trans Union ). Nor can the majority find record support for its claim that the statute helps “favored” speech and imposes a “burde[n]” upon “disfavored speech by disfavored speak ers.” Ante, at 19. The Court apparently means that the statute (1) prevents pharmaceutical companies from creat ing individualized messages that would help them sell their drugs more effectively, but (2) permits “counterde tailing” programs, which often promote generic drugs, to create such messages using prescriber-identifying data. I am willing to assume, for argument’s sake, that this con sequence would significantly increase the statute’s nega tive impact upon commercial speech. But cf. 21 CFR 202.1(e)(5)(ii) (FDA’s “fair balance” require ment); App. 193 (no similar FDA requirement for nondrug manufacturers). The record before us, however, contains no evidentiary basis for the conclusion that any such individualized counterdetailing is widespread, or exists at all, in Vermont. The majority points out, ante, at 4, that Act 80, of which was a part, also created an “evidence-based pre scription drug education program,” in which the Vermont Department of Health, the Department of Vermont Health Access, and the University of Vermont, among others, work together “to provide information and education on the therapeutic and cost-effective utilization of prescrip tion drugs” to health professionals responsible for pre scribing and dispensing prescription drugs, Vt. Stat. Ann., Tit. 18, See generally But that program does not make use of prescriber-identifying data. 16 SORRELL v. IMS HEALTH INC. BREYER, J., dissenting Reply Brief for Petitioners 11. The majority cites testimony by two witnesses in sup port of its statement that “States themselves may supply the prescriber-identifying information used in [counterde tailing] programs.” Ante, at 4. One witness explained that academic detailers in Pennsylvania work with state health officials to identify physicians serving patients whose health care is likewise state provided. App. 375. The other, an IMS Health officer, observed that Vermont has its own multipayer database containing prescriber identifying data, which could be used to talk to doctors about their prescription patterns and the lower costs associated with generics. But nothing in the record indicates that any “counterdetailing” of this kind has ever taken place in fact in Vermont. State-sponsored health care professionals sometimes meet with small groups of doctors to discuss best practices and generic drugs generally. See University of Vermont, College of Medicine, Office of Primary Care, Vermont Academic Detailing Program (July 2010), http://www.med.uvm.edu/ ahec/downloads/VTAD_overview_2010.07.08.pdf (all Inter net materials as visited June 21, 2011, and available in Clerk of Court’s case file). Nothing in Vermont’s statute prohibits brand-name manufacturers from undertaking a similar effort. The upshot is that the only commercial-speech-related harm that the record shows this statute to have brought about is the one I have previously described: The with holding of information collected through a regulatory program, thereby preventing companies from shaping a commercial message they believe maximally effective. The absence of precedent suggesting that this kind of harm is serious reinforces the conclusion that the harm here is modest at most. Cite as: 564 U. S. (2011) 17 BREYER, J., dissenting B The legitimate state interests that the statute serves are “substantial.” Central 447 U.S., Ver mont enacted its statute “to advance the state’s interest in protecting the pub lic health of Vermonters, protecting the privacy of prescribers and prescribing information, and to en sure costs are contained in the private health care sector, as well as for state purchasers of prescription drugs, through the promotion of less costly drugs and ensuring prescribers receive unbiased information.” (a). These objectives are important. And the interests they embody all are “neutral” in respect to speech. Cf. ante, at 24. The protection of public health falls within the tradi tional scope of a State’s police powers. Hillsborough County v. Automated Medical Laboratories, Inc., 471 U.S. 707, 719 (1985). The fact that the Court normally exempts the regulation of “misleading” and “deceptive” information even from the rigors of its “intermediate” commercial speech scrutiny testifies to the importance of securing “unbiased information,” see 44 Liquormart, 517 U.S., at ; Central at 563, as does the fact that the FDA sets forth as a federal regulatory goal the need to ensure a “fair balance” of information about marketed drugs, 21 CFR 202.1(e)(5)(ii). As major payers in the health care system, health care spending is also of crucial state interest. And this Court has affirmed the importance of maintaining “privacy” as an important public policy goal—even in respect to information already disclosed to the public for particular purposes (but not others). See Department of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 762–771 (1989); see also Solove, A Taxonomy of Pri 18 SORRELL v. IMS HEALTH INC. BREYER, J., dissenting vacy, 520–522 (2006); cf. NASA v. Nelson, 562 U. S. – (2011) (slip op., at 8–9) (discussing privacy interests in nondisclosure). At the same time, the record evidence is sufficient to permit a legislature to conclude that the statute “directly advances” each of these objectives. The statute helps to focus sales discussions on an individual drug’s safety, effectiveness, and cost, perhaps compared to other drugs (including generics). These drug-related facts have every thing to do with general information that drug manufac turers likely possess. They have little, if anything, to do with the name or prior prescription practices of the par ticular doctor to whom a detailer is speaking. Shaping a detailing message based on an individual doctor’s prior prescription habits may help sell more of a particular manufacturer’s particular drugs. But it does so by divert ing attention from scientific research about a drug’s safety and effectiveness, as well as its cost. This diversion comes at the expense of public health and the State’s fiscal interests. Vermont compiled a substantial legislative record to corroborate this line of reasoning. See Testimony of Sean Flynn (Apr. 11, 2007), App. in No. 09–1913–cv(L) etc. (CA2), p. A–1156 (hereinafter CA2 App.) (use of data mining helps drug companies “to cover up information that is not in the best of light of their drug and to high light information that makes them look good”); Volker & Outterson, New Legislative Trends Threaten the Way Health Information Companies Operate, Pharmaceutical Pricing & Reimbursement 2007, at A–4235 (one for mer detailer considered prescriber-identifying data the “ ‘greatest tool in planning our approach to manipulating doctors’ ” (quoting Whitney, Big (Brother) Pharma: How Drug Reps Know Which Doctors to Target, New Republic, Aug. 29, 2006, http://www.tnr.com/article/84056/health care-eli-lilly-pfizer-ama); Testimony of Paul Harrington Cite as: 564 U. S. (2011) 19 BREYER, J., dissenting (May 3, 2007), at A–1437 (describing data mining practices as “secret and manipulative activities by the marketers”); Testimony of Julie Brill (May 3, 2007), at A–1445 (restrictions on data mining “ensur[e] that the FDA’s requirement of doctors receiving fair and balanced information actually occurs”); Written Statement of Jerry Avorn & Aaron Kesselheim, at A–4310 (citing studies that “indicate that more physician-specific detailing will lead to more prescriptions of brand-name agents, often with no additional patient benefit but at much higher cost to patients and to state-based insurance programs, which will continue to drive up the cost of health care”); at 4311 (“Making it more difficult for manufacturers to tailor their marketing strategies to the prescribing histories of individual physicians would actually encourage detailers to present physicians with a more neutral description of the product”); see also Record in No. 1:07–cv–00188–jgm (D Vt.), Doc. 414, pp. 53–57, 64 (hereinafter Doc. 414) (summarizing record evidence). These conclusions required the legislature to make judgments about whether and how to ameliorate these problems. And it is the job of regulatory agencies and legislatures to make just these kinds of judgments. Ver mont’s attempts to ensure a “fair balance” of information is no different from the FDA’s similar requirement, see 21 CFR 202.1(e)(5)(ii). No one has yet sug gested that substantial portions of federal drug regulation are unconstitutional. Why then should we treat Vermont’s law differently? The record also adequately supports the State’s privacy objective. Regulatory rules in Vermont make clear that the confidentiality of an individual doctor’s prescribing practices remains the norm. See, Rule 8.7(c) (“Prescription and other patient health care infor mation shall be secure from access by the public, and the information shall be kept confidential”); Rule 20 SORRELL v. IMS HEALTH INC. BREYER, J., dissenting 20.1(i) (forbidding disclosure of patient or prescriber in formation to “unauthorized persons” without consent). Exceptions to this norm are comparatively few. See, ; Vt. Stat. Ann., Tit. 18, (e); App. 248, 255 (indicating that prescriber identifying data is not widely disseminated). There is no indication that the State of Vermont, or others in the State, makes use of this information for counterdetailing efforts. See Pharmaceutical manufacturers and the data miners who sell information to those manufacturers would like to create (and did create) an additional exception, which means additional circulation of otherwise largely confi dential information. Vermont’s statute closes that door. At the same time, the statute permits doctors who wish to permit use of their prescribing practices to do so. §(c)–(d). For purposes of Central this would seem sufficiently to show that the statute serves a mean ingful interest in increasing the protection given to pre scriber privacy. See (in commercial speech area, First Amendment requires “a fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope is in proportion to the interest served” (internal quotation marks omitted)); see also United (The First Amendment does not “require that the Government make progress on every front before it can make progress on any front”); 504 U.S., at C The majority cannot point to any adequately supported, similarly effective “more limited restriction.” Central 447 U.S., It says that doctors “can, and often do, simply decline to meet with detailers.” Ante, at 20. This fact, while true, is beside the point. Closing the Cite as: 564 U. S. (2011) 21 BREYER, J., dissenting office door entirely has no similar tendency to lower costs (by focusing greater attention upon the comparative ad vantages and disadvantages of generic drug alternatives). And it would not protect the confidentiality of information already released to, say, data miners. In any event, physi cians are unlikely to turn detailers away at the door, for those detailers, whether delivering a balanced or imbal anced message, are nonetheless providers of much useful information. See Manchanda & Honka, The Effects and Role of Direct-to-Physician Marketing in the Pharmaceuti cal Industry: An Integrative Review, 5 Yale J. Health Pol’y L. & Ethics 785, 793–797, 815–816 (2005); Ziegler, Lew, & Singer, The Accuracy of Drug Information from Pharma ceutical Sales Representatives, Forcing doctors to choose between targeted detailing and no detailing at all could therefore jeopardize the State’s interest in promoting public health. The majority also suggests that if the “statute provided that prescriber-identifying information could not be sold or disclosed except in narrow circumstances then the State might have a stronger position.” Ante, at 24–25; see also ante, at 17. But the disclosure-permitting exceptions here are quite narrow, and they serve useful, indeed essential purposes. See Compare Vt. Stat. Ann., Tit. 18, (e) with note following 42 U.S. C. p. 1190, and Regardless, this alterna tive is not “a more limited restriction,” Central for it would impose a greater, not a lesser, burden upon the dissemination of information. Respondents’ alternatives are no more helpful. Respon dents suggest that “Vermont can simply inform physicians that pharmaceutical companies use prescription his tory information to communicate with doctors.” Brief for 22 SORRELL v. IMS HEALTH INC. BREYER, J., dissenting Respondent Pharmaceutical Research and Manufacturers of America 48. But how would that help serve the State’s basic purposes? It would not create the “fair balance” of information in pharmaceutical marketing that the State, like the FDA, seeks. Cf. (alternative must be “at least as effective in achieving the legitimate purpose that the statute was enacted to serve”). Respondents also suggest policies requiring use of generic drugs or educat ing doctors about their benefits. Brief for Respondent Pharmaceutical Research and Manufacturers of America 54–55. Such programs have been in effect for some time in Vermont or other States, without indication that they have prevented the imbalanced sales tactics at which Vermont’s statute takes aim. See, Written Statement of Jerry Avorn & Aaron Kesselheim, CA2 App. 4310; Doc. 414, at 60–61. And in any event, such laws do not help protect prescriber privacy. Vermont has thus developed a record that sufficiently shows that its statute meaningfully furthers substantial state interests. Neither the majority nor respondents suggests any equally effective “more limited” restriction. And the First Amendment harm that Vermont’s statute works is, at most, modest. I consequently conclude that, even if we apply an “intermediate” test such as that in Central this statute is constitutional. IV What about the statute’s third restriction, providing that “[p]harmaceutical manufacturers and pharmaceutical marketers” may not “use prescriber-identifiable informa tion for marketing or promoting a prescription drug unless the prescriber consents”? Vt. Stat. Ann., Tit. 18, In principle, I should not reach this question. That is because respondent pharmaceutical manufacturers, marketers, and data miners seek a de Cite as: 564 U. S. (2011) 23 BREYER, J., dissenting claratory judgment and injunction prohibiting the en forcement of this statute. See 28 U.S. C. App. 49– 128. And they have neither shown nor claimed that they could obtain significant amounts of “prescriber-identifiable information” if the first two prohibitions are valid. If, as I believe, the first two statutory prohibitions (related to selling and disclosing the information) are valid, then the dispute about the validity of the third provision is not “ ‘real and substantial’ ” or “ ‘definite and concrete.’ ” MedImmune, (2007) (quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240–241 (1937)) (Article III does not permit courts to entertain such disputes). The Court, however, strikes down all three provisions, and so I add that I disagree with the majority as to the constitutionality of the third restriction as well—basically for the reasons I have already set out. The prohibition against pharmaceutical firms using this prescriber identifying information works no more than modest First Amendment harm; the prohibition is justified by the need to ensure unbiased sales presentations, prevent unneces sarily high drug costs, and protect the privacy of prescrib ing physicians. There is no obvious equally effective, more limited alternative. V In sum, I believe that the statute before us satisfies the “intermediate” standards this Court has applied to restric tions on commercial speech. A fortiori it satisfies less demanding standards that are more appropriately applied in this kind of commercial regulatory case—a case where the government seeks typical regulatory ends (lower drug prices, more balanced sales messages) through the use of ordinary regulatory means (limiting the commercial use of data gathered pursuant to a regulatory mandate). The speech-related consequences here are indirect, incidental, 24 SORRELL v. IMS HEALTH INC. BREYER, J., dissenting and entirely commercial. See at 6–9. The Court reaches its conclusion through the use of important First Amendment categories—“content-based,” “speaker-based,” and “neutral”—but without taking full account of the regulatory context, the nature of the speech effects, the values these First Amendment categories seek to promote, and prior precedent. See at 2–6, 9–13, 17. At best the Court opens a Pandora’s Box of First Amendment challenges to many ordinary regulatory practices that may only incidentally affect a commercial message. See, at 7–8, 9–11. At worst, it re awakens Lochner’s pre-New Deal threat of substituting judicial for democratic decisionmaking where ordinary economic regulation is at issue. See Central 447 U.S., at 589 Regardless, whether we apply an ordinary commercial speech standard or a less demanding standard, I believe Vermont’s law is consistent with the First Amendment. And with respect, I dissent |
Justice O'Connor | majority | false | Seling v. Young | 2001-01-17T00:00:00 | null | https://www.courtlistener.com/opinion/118401/seling-v-young/ | https://www.courtlistener.com/api/rest/v3/clusters/118401/ | 2,001 | 2000-015 | 1 | 8 | 1 | Washington State's Community Protection Act of 1990 authorizes the civil commitment of "sexually violent predators," persons who suffer from a mental abnormality or personality disorder that makes them likely to engage in predatory acts of sexual violence. Wash. Rev. Code § 71.09.010 et seq. (1992). Respondent, Andre Brigham Young, is confined as a sexually violent predator at the Special Commitment Center (Center), for which petitioner is the superintendent. After respondent's challenges to his commitment in state court proved largely unsuccessful, he instituted a habeas action under 28 U.S. C. § 2254, seeking release from confinement. The Washington Supreme Court had already held that the Act is civil, In re Young, 122 Wash. 2d 1, 857 P.2d 989 (1993) (en banc), and this Court held a similar commitment scheme for sexually violent predators in Kansas to be civil on its face, Kansas v. Hendricks, 521 U.S. 346 (1997). The Court of Appeals for the Ninth Circuit nevertheless concluded that respondent could challenge the statute as being punitive "as applied" to him in violation of the *254 Double Jeopardy and Ex Post Facto Clauses, and remanded the case to the District Court for an evidentiary hearing.
I
A
Washington State's Community Protection Act of 1990 (Act) was a response to citizens' concerns about laws and procedures regarding sexually violent offenders. One of the Act's provisions authorizes civil commitment of such offenders. Wash. Rev. Code § 71.09.010 et seq. (1992 and Supp. 2000). The Act defines a sexually violent predator as someone who has been convicted of, or charged with, a crime of sexual violence and who suffers from a mental abnormality or personality disorder that makes the person likely to engage in predatory acts of sexual violence if not confined in a secure facility. § 71.09.020(1) (Supp. 2000). The statute reaches prisoners, juveniles, persons found incompetent to stand trial, persons found not guilty by reason of insanity, and persons at any time convicted of a sexually violent offense who have committed a recent overt act. § 71.09.030. Generally, when it appears that a person who has committed a sexually violent offense is about to be released from confinement, the prosecuting attorney files a petition alleging that that person is a sexually violent predator. Ibid. That filing triggers a process for charging and trying the person as a sexually violent predator, during which he is afforded a panoply of protections including counsel and experts (paid for by the State in cases of indigency), a probable cause hearing, and trial by judge or jury at the individual's option. §§ 71.09.040-71.09.050. At trial, the State bears the burden to prove beyond a reasonable doubt that the person is a sexually violent predator. § 71.09.060(1).
Upon the finding that a person is a sexually violent predator, he is committed for control, care, and treatment to the custody of the department of social and health services. Ibid. Once confined, the person has a right to adequate care *255 and individualized treatment. § 71.09.080(2). The person is also entitled to an annual examination of his mental condition. § 71.09.070. If that examination indicates that the individual's condition is so changed that he is not likely to engage in predatory acts of sexual violence, state officials must authorize the person to petition the court for conditional release or discharge. § 71.09.090(1). The person is entitled to a hearing at which the State again bears the burden of proving beyond a reasonable doubt that he is not safe to be at large. Ibid. The person may also independently petition the court for release. § 71.09.090(2). At a show cause hearing, if the court finds probable cause to believe that the person is no longer dangerous, a full hearing will be held at which the State again bears the burden of proof. Ibid.
The Act also provides a procedure to petition for conditional release to a less restrictive alternative to confinement. § 71.09.090. Before ordering conditional release, the court must find that the person will be treated by a state certified sexual offender treatment provider, that there is a specific course of treatment, that housing exists that will be sufficiently secure to protect the community, and that the person is willing to comply with the treatment and supervision requirements. § 71.09.092. Conditional release is subject to annual review until the person is unconditionally released. §§ 71.09.096, 71.09.098.
B
Respondent, Andre Brigham Young, was convicted of six rapes over three decades. App. to Pet. for Cert. 33a. Young was scheduled to be released from prison for his most recent conviction in October 1990. One day prior to his scheduled release, the State filed a petition to commit Young as a sexually violent predator. Id., at 32a.
At the commitment hearing, Young's mental health experts testified that there is no mental disorder that makes a person likely to reoffend and that there is no way to predict accurately who will reoffend. The State called an expert *256 who testified, based upon a review of Young's records, that Young suffered from a severe personality disorder not otherwise specified with primarily paranoid and antisocial features, and a severe paraphilia, which would be classified as either paraphilia sexual sadism or paraphilia not otherwise specified (rape). See generally American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 522-523, 530, 532, 634, 645-646, 673 (4th ed. 1994). In the state expert's opinion, severe paraphilia constituted a mental abnormality under the Act. The State's expert concluded that Young's condition, in combination with the personality disorder, the span of time during which Young committed his crimes, his recidivism, his persistent denial, and his lack of empathy or remorse, made it more likely than not that he would commit further sexually violent acts. The victims of Young's rapes also testified. The jury unanimously concluded that Young was a sexually violent predator.
Young and another individual appealed their commitments in state court, arguing that the Act violated the Double Jeopardy, Ex Post Facto, Due Process, and Equal Protection Clauses of the Federal Constitution. In major respects, the Washington Supreme Court held that the Act is constitutional. In re Young, 122 Wash. 2d 1, 857 P.2d 989 (1993) (en banc). To the extent the court concluded that the Act violated due process and equal protection principles, those rulings are reflected in subsequent amendments to the Act. See Part IA, supra.
The Washington court reasoned that the claimants' double jeopardy and ex post facto claims hinged on whether the Act is civil or criminal in nature. Following this Court's precedents, the court examined the language of the Act, the legislative history, and the purpose and effect of the statutory scheme. The court found that the legislature clearly intended to create a civil scheme both in the statutory language and legislative history. The court then turned to *257 examine whether the actual impact of the Act is civil or criminal. The Act, the court concluded, is concerned with treating committed persons for a current mental abnormality, and protecting society from the sexually violent acts associated with that abnormality, rather than being concerned with criminal culpability. The court distinguished the goals of incapacitation and treatment from the goal of punishment. The court found that the Washington Act is designed to further legitimate goals of civil confinement and that the claimants had failed to provide proof to the contrary. 122 Wash. 2d, at 18-25, 857 P.2d, at 996-1000.
The Act spawned several other challenges in state and federal court, two of which bear mention. Richard Turay, committed as a sexually violent predator, filed suit in Federal District Court against Center officials under Rev. Stat. § 1979, 42 U.S. C. § 1983, alleging unconstitutional conditions of confinement and inadequate treatment at the Center. In 1994, a jury concluded that the Center had failed to provide constitutionally adequate mental health treatment. App. 64-68. The court ordered officials at the Center to bring the institution up to constitutional standards, appointing a Special Master to monitor progress at the Center. The Center currently operates under an injunction. Turay v. Seling, 108 F. Supp. 2d 1148 (WD Wash. 2000). See also Brief for Petitioner 8-9.
Turay also appealed his commitment as a sexually violent predator in state court, claiming, among other things, that the conditions of confinement at the Center rendered the Washington Act punitive "as applied" to him in violation of the Double Jeopardy Clause. The Washington Supreme Court ruled that Turay's commitment was valid. In re Turay, 139 Wash. 2d 379, 986 P.2d 790 (1999) (en banc). The court explained that in Young, it had concluded that the Act is civil. 139 Wash. 2d, at 415, 986 P.2d, at 809. The court also noted that this Court had recently held Kansas' Sexually Violent Predator Act, nearly identical to Washington's Act, *258 to be civil on its face. Ibid. The Washington Supreme Court rejected Turay's theory of double jeopardy, reasoning that the double jeopardy claim must be resolved by asking whether the Act itself is civil. Id., at 416-417, 986 P.2d, at 810 (citing Hudson v. United States, 522 U.S. 93 (1997)). The court concluded that Turay's proper remedy for constitutional violations in conditions of confinement at the Center was his § 1983 action for damages and injunctive relief. 139 Wash. 2d, at 420, 986 P.2d, at 812.
C
That brings us to the action before this Court. In 1994, after unsuccessful challenges to his confinement in state court, Young filed ahabeas action under 28 U.S. C. § 2254 against the superintendent of the Center. Young contended that the Act was unconstitutional and that his confinement was illegal. He sought immediate release. The District Court granted the writ, concluding that the Act violated substantive due process, that the Act was criminal rather than civil, and that it violated the double jeopardy and ex post facto guarantees of the Constitution. Young v. Weston, 898 F. Supp. 744 (WD Wash. 1995). The superintendent appealed. While the appeal was pending, this Court decided Kansas v. Hendricks, 521 U.S. 346 (1997), which held that Kansas' Sexually Violent Predator Act, on its face, met substantive due process requirements, was nonpunitive, and thus did not violate the Double Jeopardy and Ex Post Facto Clauses. The Ninth Circuit Court of Appeals remanded Young's case to the District Court for reconsideration in light of Hendricks. 122 F.3d 38 (1997).
On remand, the District Court denied Young's petition. Young appealed and the Ninth Circuit reversed and remanded in part and affirmed in part. 192 F.3d 870 (1999). The Ninth Circuit affirmed the District Court's ruling that Young's confinement did not violate the substantive due process requirement that the State prove mental illness *259 and dangerousness to justify confinement. Id., at 876. The Court of Appeals also left undisturbed the District Court's conclusion that the Act meets procedural due process and equal protection guarantees, and the District Court's rejection of Young's challenges to his commitment proceedings. Id., at 876-877. Young did not seek a petition for a writ of certiorari to the Ninth Circuit for its decision affirming the District Court in these respects, and accordingly, those issues are not before this Court.
The Ninth Circuit reversed the District Court's determination that because the Washington Act is civil, Young's double jeopardy and ex post facto claims must fail. The "linchpin" of Young's claims, the court reasoned, was whether the Act was punitive "as applied" to Young. Id., at 873. The court did not read this Court's decision in Hendricks to preclude the possibility that the Act could be punitive as applied. The court reasoned that actual conditions of confinement could divest a facially valid statute of its civil label upon a showing by the clearest proof that the statutory scheme is punitive in effect. 192 F.3d, at 874.
The Court of Appeals reviewed Young's claims that conditions of confinement at the Center were punitive and did not comport with due process. Id., at 875. Young alleged that for seven years, he had been subject to conditions more restrictive than those placed on true civil commitment detainees, and even state prisoners. The Center, located wholly within the perimeter of a larger Department of Corrections (DOC) facility, relied on the DOC for a host of essential services, including library services, medical care, food, and security. More recently, Young claimed, the role of the DOC had increased to include daily security "walk-throughs." Young contended that the conditions and restrictions at the Center were not reasonably related to a legitimate nonpunitive goal, as residents were abused, confined to their rooms, subjected to random searches of their rooms and units, and placed under excessive security.
*260 Young also contended that conditions at the Center were incompatible with the Act's treatment purpose. The Center had a policy of videotaping therapy sessions and withholding privileges for refusal to submit to treatment. The Center residents were housed in units that, according to the Special Master in the Turay litigation, were clearly inappropriate for persons in a mental health treatment program. The Center still lacked certified sex offender treatment providers. Finally, there was no possibility of release. A courtappointed resident advocate and psychologist concluded in his final report that because the Center had not fundamentally changed over so many years, he had come to suspect that the Center was designed and managed to punish and confine individuals for life without any hope of release to a less restrictive setting. 192 F.3d, at 875. See also Amended Petition for Writ of Habeas Corpus, Supplemental Brief on Remand, and Motion to Alter Judgment 4-5, 8-9, 11-12, 15, 20, 24-26, in No. C94-480C (WD Wash.), Record, Doc. Nos. 57, 155, and 167.
The Ninth Circuit concluded that "[b]y alleging that [the Washington Act] is punitive as applied, Young alleged facts which, if proved, would entitle him to relief." 192 F.3d, at 875. The court remanded the case to the District Court for a hearing to determine whether the conditions at the Center rendered the Act punitive as applied to Young. Id., at 876.
This Court granted the petition for a writ of certiorari, 529 U.S. 1017 (2000), to resolve the conflict between the Ninth Circuit Court of Appeals and the Washington Supreme Court. Compare 192 F.3d 870 (1999), with In re Turay, 139 Wash. 2d 379, 986 P.2d 790 (1999).
II
As the Washington Supreme Court held and the Ninth Circuit acknowledged, we proceed on the understanding that the Washington Act is civil in nature. The Washington Act is strikingly similar to a commitment scheme we reviewed *261 four Terms ago in Kansas v. Hendricks, 521 U.S. 346 (1997). In fact, Kansas patterned its Act after Washington's. See In re Hendricks, 259 Kan. 246, 249, 912 P.2d 129, 131 (1996). In Hendricks, we explained that the question whether an Act is civil or punitive in nature is initially one of statutory construction. 521 U.S., at 361 (citing Allen v. Illinois, 478 U.S. 364, 368 (1986)). A court must ascertain whether the legislature intended the statute to establish civil proceedings. A court will reject the legislature's manifest intent only where a party challenging the Act provides the clearest proof that the statutory scheme is so punitive in either purpose or effect as to negate the State's intention. 521 U.S., at 361 (citing United States v. Ward, 448 U.S. 242, 248-249 (1980)). We concluded that the confined individual in that case had failed to satisfy his burden with respect to the Kansas Act. We noted several factors: The Act did not implicate retribution or deterrence; prior criminal convictions were used as evidence in the commitment proceedings, but were not a prerequisite to confinement; the Act required no finding of scienter to commit a person; the Act was not intended to function as a deterrent; and although the procedural safeguards were similar to those in the criminal context, they did not alter the character of the scheme. 521 U.S., at 361-365.
We also examined the conditions of confinement provided by the Act. Id., at 363-364. The Court was aware that sexually violent predators in Kansas were to be held in a segregated unit within the prison system. Id., at 368. We explained that the Act called for confinement in a secure facility because the persons confined were dangerous to the community. Id., at 363. We noted, however, that conditions within the unit were essentially the same as conditions for other involuntarily committed persons in mental hospitals. Ibid. Moreover, confinement under the Act was not necessarily indefinite in duration. Id., at 364. Finally, we observed that in addition to protecting the public, the Act also provided treatment for sexually violent predators. Id., *262 at 365-368. We acknowledged that not all mental conditions were treatable. For those individuals with untreatable conditions, however, we explained that there was no federal constitutional bar to their civil confinement, because the State had an interest in protecting the public from dangerous individuals with treatable as well as untreatable conditions. Id., at 366. Our conclusion that the Kansas Act was "nonpunitive thus remove[d] an essential prerequisite for both Hendricks' double jeopardy and ex post facto claims." Id., at 369.
Since deciding Hendricks, this Court has reaffirmed the principle that determining the civil or punitive nature of an Act must begin with reference to its text and legislative history. Hudson v.United States, 522 U.S. 93 (1997). In Hudson, which involved a double jeopardy challenge to monetary penalties and occupational debarment, this Court expressly disapproved of evaluating the civil nature of an Act by reference to the effect that Act has on a single individual. Instead, courts must evaluate the question by reference to a variety of factors "`considered in relation to the statute on its face' "; the clearest proof is required to override legislative intent and conclude that an Act denominated civil is punitive in purpose or effect. Id., at 100 (quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 169 (1963)).
With this in mind, we turn to the Court of Appeals' determination that respondent could raise an "as-applied" challenge to the Act on double jeopardy and ex post facto grounds and seek release from confinement. Respondent essentially claims that the conditions of his confinement at the Center are too restrictive, that the conditions are incompatible with treatment, and that the system is designed to result in indefinite confinement. Respondent's claims are in many respects like the claims presented to the Court in Hendricks, where we concluded that the conditions of confinement were largely explained by the State's goal to incapacitate, not to punish. 521 U.S., at 362-368. Nevertheless, *263 we do not deny that some of respondent's allegations are serious. Nor do we express any view as to how his allegations would bear on a court determining in the first instance whether Washington's confinement scheme is civil. Here, we evaluate respondent's allegations as presented in a double jeopardy and ex post facto challenge under the assumption that the Act is civil.
We hold that respondent cannot obtain release through an "as-applied" challenge to the Washington Act on double jeopardy and ex post facto grounds. We agree with petitioner that an "as-applied" analysis would prove unworkable. Such an analysis would never conclusively resolve whether a particular scheme is punitive and would thereby prevent a final determination of the scheme's validity under the Double Jeopardy and Ex Post Facto Clauses. Brief for Petitioner 30; Reply Brief for Petitioner 9. Unlike a fine, confinement is not a fixed event. As petitioner notes, it extends over time under conditions that are subject to change. The particular features of confinement may affect how a confinement scheme is evaluated to determine whether it is civil rather than punitive, but it remains no less true that the query must be answered definitively. The civil nature of a confinement scheme cannot be altered based merely on vagaries in the implementation of the authorizing statute.
Respondent contends that the Ninth Circuit's "as-applied" analysis comports with this Court's precedents. He points out that this Court has considered conditions of confinement in evaluating the validity of confinement schemes in the past. Brief for Respondent 11-16, 29 (citing Hendricks, supra, at 363; Reno v. Flores, 507 U.S. 292, 301-302 (1993); United States v. Salerno, 481 U.S. 739, 747-748 (1987); Allen v. Illinois, supra, at 373-374; Schall v. Martin, 467 U.S. 253, 269 273 (1984)). All of those cases, however, presented the question whether the Act at issue was punitive. Permitting respondent's as-applied challenge would invite an end run around the Washington Supreme Court's decision that the *264 Act is civil in circumstances where a direct attack on that decision is not before this Court.
Justice Thomas, concurring in the judgment, takes issue with our view that the question before the Court concerns an as-applied challenge to a civil Act. He first contends that respondent's challenge is not a true "as-applied" challenge because respondent does not claim that the statute "`by its own terms' is unconstitutional as applied . . . but rather that the statute is not being applied according to its terms at all." Post, at 271. We respectfully disagree. The Act requires "adequate care and individualized treatment," Wash. Rev. Code § 71.09.080(2) (Supp. 2000), but the Act is silent with respect to the confinement conditions required at the Center, and that is the source of many of respondent's complaints, see supra, at 259-260. Justice Thomas next contends that we incorrectly assume that the Act is civil, instead of viewing the Act as "`otherwise . . . civil,' or civil `on its face.' " Post, at 270 (emphasis added by Thomas, J.). However the Washington Act is described, our analysis in this case turns on the prior finding by the Washington Supreme Court that the Act is civil, and this Court's decision in Hendricks that a nearly identical Act was civil. Petitioner could not have claimed that the Washington Act is "otherwise" or "facially" civil without relying on those prior decisions.
In dissent, Justice Stevens argues that we "incorrectly assum[e]" that the Act is "necessarily civil," post, at 275, but the case has reached this Court under that very assumption. The Court of Appeals recognized that the Act is civil, and treated respondent's claim as an individual, "as-applied" challenge to the Act. The Court of Appeals then remanded the case to the District Court for an evidentiary hearing to determine respondent's conditions of confinement. Contrary to the dissent's characterization of the case, the Court of Appeals did not purport to undermine the validity of the Washington Act as a civil confinement scheme. The court did not conclude that respondent's allegations, if substantiated, *265 would be sufficient to refute the Washington Supreme Court's conclusion that the Act is civil, and to require the release of all those confined under its authority. The Ninth Circuit addressed only respondent's individual case, and we do not decide claims that are not presented by the decision below. Matsushita Elec. Industrial Co. v. Epstein, 516 U.S. 367, 379 (1996). We reject the Ninth Circuit's "asapplied" analysis for double jeopardy and ex post facto claims as fundamentally flawed.
III
Our decision today does not mean that respondent and others committed as sexually violent predators have no remedy for the alleged conditions and treatment regime at the Center. The text of the Washington Act states that those confined under its authority have the right to adequate care and individualized treatment. Wash. Rev. Code § 71.09.080(2) (Supp. 2000); Brief for Petitioner 14. As petitioner acknowledges, if the Center fails to fulfill its statutory duty, those confined may have a state law cause of action. Tr. of Oral Arg. 6, 10-11, 52. It is for the Washington courts to determine whether the Center is operating in accordance with state law and provide a remedy.
State courts, in addition to federal courts, remain competent to adjudicate and remedy challenges to civil confinement schemes arising under the Federal Constitution. As noted above, the Washington Supreme Court has already held that the Washington Act is civil in nature, designed to incapacitate and to treat. In re Young, 122 Wash. 2d, at 18-25, 857 P.2d, at 996-1000. Accordingly, due process requires that the conditions and duration of confinement under the Act bear some reasonable relation to the purpose for which persons are committed. Foucha v. Louisiana, 504 U.S. 71, 79 (1992); Youngberg v. Romeo, 457 U.S. 307, 324 (1982); Jackson v. Indiana, 406 U.S. 715, 738 (1972).
Finally, we note that a § 1983 action against the Center is pending in the Western District of Washington. See supra, *266 at 257. The Center operates under an injunction that requires it to adopt and implement a plan for training and hiring competent sex offender therapists; to improve relations between residents and treatment providers; to implement a treatment program for residents containing elements required by prevailing professional standards; to develop individual treatment programs; and to provide a psychologist or psychiatrist expert in the diagnosis and treatment of sex offenders to supervise the staff. App. 67. A Special Master has assisted in bringing the Center into compliance with the injunction. In its most recent published opinion on the matter, the District Court noted some progress at the Center in meeting the requirements of the injunction. Turay v. Seling, 108 F. Supp. 2d, at 1154-1155.
This case gives us no occasion to consider how the civil nature of a confinement scheme relates to other constitutional challenges, such as due process, or to consider the extent to which a court may look to actual conditions of confinement and implementation of the statute to determine in the first instance whether a confinement scheme is civil in nature. Justice Scalia, concurring, contends that conditions of confinement are irrelevant to determining whether an Act is civil unless state courts have interpreted the Act as permitting those conditions. By contrast, Justice Stevens would consider conditions of confinement at any time in order to gain "full knowledge of the effects of the statute." Post, at 277.
Whether a confinement scheme is punitive has been the threshold question for some constitutional challenges. See, e. g., Kansas v. Hendricks, 521 U.S. 346 (1997) (double jeopardy and ex post facto ); United States v. Salerno, 481 U.S. 739 (1987) (due process); Allen v. Illinois, 478 U.S. 364 (1986) (Fifth Amendment privilege against self-incrimination). Whatever these cases may suggest about the relevance of conditions of confinement, they do not endorse the approach of the dissent, which would render the inquiry into the "effects *267 of the statute," post, at 277, completely open ended. In one case, the Court refused to consider alleged confinement conditions because the parties had entered into a consent decree to improve conditions. Flores, 507 U. S., at 301. The Court presumed that conditions were in compliance with the requirements of the consent decree. Ibid. In another case, the Court found that anecdotal case histories and a statistical study were insufficient to render a regulatory confinement scheme punitive. Martin, 467 U. S., at 272. In such cases, we have decided whether a confinement scheme is punitive notwithstanding the inherent difficulty in ascertaining current conditions and predicting future events.
We have not squarely addressed the relevance of conditions of confinement to a first instance determination, and that question need not be resolved here. An Act, found to be civil, cannot be deemed punitive "as applied" to a single individual in violation of the Double Jeopardy and Ex Post Facto Clauses and provide cause for release.
The judgment of the United States Court of Appeals for the Ninth Circuit is therefore reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered. | Washington State's Community Protection ct of 1990 authorizes the civil commitment of "sexually violent predators," persons who suffer from a mental abnormality or personality disorder that makes them likely to engage in predatory acts of sexual violence. et seq. Respondent, ndre Brigham is confined as a sexually violent predator at the Special Commitment Center (Center), for which petitioner is the superintendent. fter respondent's challenges to his commitment in state court proved largely unsuccessful, he instituted a habeas action under 28 U.S. C. 2254, seeking release from confinement. The Washington Supreme Court had already held that the ct is civil, In re and this Court held a similar commitment scheme for sexually violent predators in Kansas to be civil on its face, The Court of ppeals for the Ninth Circuit nevertheless concluded that respondent could challenge the statute as being punitive "as applied" to him in violation of the *254 Double Jeopardy and Ex Post Facto Clauses, and remanded the case to the District Court for an evidentiary hearing. I Washington State's Community Protection ct of 1990 (ct) was a response to citizens' concerns about laws and procedures regarding sexually violent offenders. One of the ct's provisions authorizes civil commitment of such offenders. et seq. The ct defines a sexually violent predator as someone who has been convicted of, or charged with, a crime of sexual violence and who suffers from a mental abnormality or personality disorder that makes the person likely to engage in predatory acts of sexual violence if not confined in a secure facility. 71.09.020(1) The statute reaches prisoners, juveniles, persons found incompetent to stand trial, persons found not guilty by reason of insanity, and persons at any time convicted of a sexually violent offense who have committed a recent overt act. 71.09.030. Generally, when it appears that a person who has committed a sexually violent offense is about to be released from confinement, the prosecuting attorney files a petition alleging that that person is a sexually violent predator. That filing triggers a process for charging and trying the person as a sexually violent predator, during which he is afforded a panoply of protections including counsel and experts (paid for by the State in cases of indigency), a probable cause hearing, and trial by judge or jury at the individual's option. 71.09.040-71.09.050. t trial, the State bears the burden to prove beyond a reasonable doubt that the person is a sexually violent predator. 71.09.060(1). Upon the finding that a person is a sexually violent predator, he is committed for control, care, and treatment to the custody of the department of social and health services. Once confined, the person has a right to adequate care *255 and individualized treatment. 71.09.080(2). The person is also entitled to an annual examination of his mental condition. 71.09.070. If that examination indicates that the individual's condition is so changed that he is not likely to engage in predatory acts of sexual violence, state officials must authorize the person to petition the court for conditional release or discharge. 71.09.090(1). The person is entitled to a hearing at which the State again bears the burden of proving beyond a reasonable doubt that he is not safe to be at large. The person may also independently petition the court for release. 71.09.090(2). t a show cause hearing, if the court finds probable cause to believe that the person is no longer dangerous, a full hearing will be held at which the State again bears the burden of proof. The ct also provides a procedure to petition for conditional release to a less restrictive alternative to confinement. 71.09.090. Before ordering conditional release, the court must find that the person will be treated by a state certified sexual offender treatment provider, that there is a specific course of treatment, that housing exists that will be sufficiently secure to protect the community, and that the person is willing to comply with the treatment and supervision requirements. 71.09.092. Conditional release is subject to annual review until the person is unconditionally released. 71.09.096, 71.09.098. B Respondent, ndre Brigham was convicted of six rapes over three decades. pp. to Pet. for Cert. 33a. was scheduled to be released from prison for his most recent conviction in October 1990. One day prior to his scheduled release, the State filed a petition to commit as a sexually violent predator. at 32a. t the commitment hearing, 's mental health experts testified that there is no mental disorder that makes a person likely to reoffend and that there is no way to predict accurately who will reoffend. The State called an expert *256 who testified, based upon a review of 's records, that suffered from a severe personality disorder not otherwise specified with primarily paranoid and antisocial features, and a severe paraphilia, which would be classified as either paraphilia sexual sadism or paraphilia not otherwise specified (rape). See generally merican Psychiatric ssociation, Diagnostic and Statistical Manual of Mental Disorders 522-523, 530, 532, 634, 645-646, 673 (4th ed. 1994). In the state expert's opinion, severe paraphilia constituted a mental abnormality under the ct. The State's expert concluded that 's condition, in combination with the personality disorder, the span of time during which committed his crimes, his recidivism, his persistent denial, and his lack of empathy or remorse, made it more likely than not that he would commit further sexually violent acts. The victims of 's rapes also testified. The jury unanimously concluded that was a sexually violent predator. and another individual appealed their commitments in state court, arguing that the ct violated the Double Jeopardy, Ex Post Facto, Due Process, and Equal Protection Clauses of the Federal Constitution. In major respects, the Washington Supreme Court held that the ct is constitutional. In re To the extent the court concluded that the ct violated due process and equal protection principles, those rulings are reflected in subsequent amendments to the ct. See Part I, The Washington court reasoned that the claimants' double jeopardy and ex post facto claims hinged on whether the ct is civil or criminal in nature. Following this Court's precedents, the court examined the language of the ct, the legislative history, and the purpose and effect of the statutory scheme. The court found that the legislature clearly intended to create a civil scheme both in the statutory language and legislative history. The court then turned to *257 examine whether the actual impact of the ct is civil or criminal. The ct, the court concluded, is concerned with treating committed persons for a current mental abnormality, and protecting society from the sexually violent acts associated with that abnormality, rather than being concerned with criminal culpability. The court distinguished the goals of incapacitation and treatment from the goal of punishment. The court found that the Washington ct is designed to further legitimate goals of civil confinement and that the claimants had failed to provide proof to the contrary. -1000. The ct spawned several other challenges in state and federal court, two of which bear mention. Richard Turay, committed as a sexually violent predator, filed suit in Federal District Court against Center officials under Rev. Stat. 19, 42 U.S. C. 1983, alleging unconstitutional conditions of confinement and inadequate treatment at the Center. In 1994, a jury concluded that the Center had failed to provide constitutionally adequate mental health treatment. pp. 64-68. The court ordered officials at the Center to bring the institution up to constitutional standards, appointing a Special Master to monitor progress at the Center. The Center currently operates under an injunction. See also Brief for Petitioner 8-9. Turay also appealed his commitment as a sexually violent predator in state court, claiming, among other things, that the conditions of confinement at the Center rendered the Washington ct punitive "as applied" to him in violation of the Double Jeopardy Clause. The Washington Supreme Court ruled that Turay's commitment was valid. In re Turay, The court explained that in it had concluded that the ct is The court also noted that this Court had recently held Kansas' Sexually Violent Predator ct, nearly identical to Washington's ct, *258 to be civil on its face. The Washington Supreme Court rejected Turay's theory of double jeopardy, reasoning that the double jeopardy claim must be resolved by asking whether the ct itself is ). The court concluded that Turay's proper remedy for constitutional violations in conditions of confinement at the Center was his 1983 action for damages and injunctive C That brings us to the action before this Court. In 1994, after unsuccessful challenges to his confinement in state court, filed ahabeas action under 28 U.S. C. 2254 against the superintendent of the Center. contended that the ct was unconstitutional and that his confinement was illegal. He sought immediate release. The District Court granted the writ, concluding that the ct violated substantive due process, that the ct was criminal rather than civil, and that it violated the double jeopardy and ex post facto guarantees of the Constitution. The superintendent appealed. While the appeal was pending, this Court decided which held that Kansas' Sexually Violent Predator ct, on its face, met substantive due process requirements, was nonpunitive, and thus did not violate the Double Jeopardy and Ex Post Facto Clauses. The Ninth Circuit Court of ppeals remanded 's case to the District Court for reconsideration in light of On remand, the District Court denied 's petition. appealed and the Ninth Circuit reversed and remanded in part and affirmed in part. The Ninth Circuit affirmed the District Court's ruling that 's confinement did not violate the substantive due process requirement that the State prove mental illness *259 and dangerousness to justify confinement. The Court of ppeals also left undisturbed the District Court's conclusion that the ct meets procedural due process and equal protection guarantees, and the District Court's rejection of 's challenges to his commitment proceedings. -877. did not seek a petition for a writ of certiorari to the Ninth Circuit for its decision affirming the District Court in these respects, and accordingly, those issues are not before this Court. The Ninth Circuit reversed the District Court's determination that because the Washington ct is civil, 's double jeopardy and ex post facto claims must fail. The "linchpin" of 's claims, the court reasoned, was whether the ct was punitive "as applied" to The court did not read this Court's decision in to preclude the possibility that the ct could be punitive as applied. The court reasoned that actual conditions of confinement could divest a facially valid statute of its civil label upon a showing by the clearest proof that the statutory scheme is punitive in effect. The Court of ppeals reviewed 's claims that conditions of confinement at the Center were punitive and did not comport with due process. alleged that for seven years, he had been subject to conditions more restrictive than those placed on true civil commitment detainees, and even state prisoners. The Center, located wholly within the perimeter of a larger Department of Corrections (DOC) facility, relied on the DOC for a host of essential services, including library services, medical care, food, and security. More recently, claimed, the role of the DOC had increased to include daily security "walk-throughs." contended that the conditions and restrictions at the Center were not reasonably related to a legitimate nonpunitive goal, as residents were abused, confined to their rooms, subjected to random searches of their rooms and units, and placed under excessive security. *260 also contended that conditions at the Center were incompatible with the ct's treatment purpose. The Center had a policy of videotaping therapy sessions and withholding privileges for refusal to submit to treatment. The Center residents were housed in units that, according to the Special Master in the Turay litigation, were clearly inappropriate for persons in a mental health treatment program. The Center still lacked certified sex offender treatment providers. Finally, there was no possibility of release. courtappointed resident advocate and psychologist concluded in his final report that because the Center had not fundamentally changed over so many years, he had come to suspect that the Center was designed and managed to punish and confine individuals for life without any hope of release to a less restrictive setting. 192 F.3d, See also mended Petition for Writ of Habeas Corpus, Supplemental Brief on Remand, and Motion to lter Judgment 4-5, 8-9, 11-12, 15, 20, 24-26, in No. C94-480C (WD Wash.), Record, Doc. Nos. 57, 155, and 167. The Ninth Circuit concluded that "[b]y alleging that [the Washington ct] is punitive as applied, alleged facts which, if proved, would entitle him to " 192 F.3d, The court remanded the case to the District Court for a hearing to determine whether the conditions at the Center rendered the ct punitive as applied to This Court granted the petition for a writ of certiorari, to resolve the conflict between the Ninth Circuit Court of ppeals and the Washington Supreme Court. Compare with In re Turay, II s the Washington Supreme Court held and the Ninth Circuit acknowledged, we proceed on the understanding that the Washington ct is civil in nature. The Washington ct is strikingly similar to a commitment scheme we reviewed *261 four Terms ago in In fact, Kansas patterned its ct after Washington's. See In re In we explained that the question whether an ct is civil or punitive in nature is initially one of statutory ). court must ascertain whether the legislature intended the statute to establish civil proceedings. court will reject the legislature's manifest intent only where a party challenging the ct provides the clearest proof that the statutory scheme is so punitive in either purpose or effect as to negate the State's intention. ). We concluded that the confined individual in that case had failed to satisfy his burden with respect to the Kansas ct. We noted several factors: The ct did not implicate retribution or deterrence; prior criminal convictions were used as evidence in the commitment proceedings, but were not a prerequisite to confinement; the ct required no finding of scienter to commit a person; the ct was not intended to function as a deterrent; and although the procedural safeguards were similar to those in the criminal context, they did not alter the character of the scheme. -365. We also examined the conditions of confinement provided by the ct. The Court was aware that sexually violent predators in Kansas were to be held in a segregated unit within the prison system. at We explained that the ct called for confinement in a secure facility because the persons confined were dangerous to the community. We noted, however, that conditions within the unit were essentially the same as conditions for other involuntarily committed persons in mental hospitals. Moreover, confinement under the ct was not necessarily indefinite in duration. Finally, we observed that in addition to protecting the public, the ct also provided treatment for sexually violent predators. *262 at 365-. We acknowledged that not all mental conditions were treatable. For those individuals with untreatable conditions, however, we explained that there was no federal constitutional bar to their civil confinement, because the State had an interest in protecting the public from dangerous individuals with treatable as well as untreatable conditions. Our conclusion that the Kansas ct was "nonpunitive thus remove[d] an essential prerequisite for both ' double jeopardy and ex post facto claims." Since deciding this Court has reaffirmed the principle that determining the civil or punitive nature of an ct must begin with reference to its text and legislative history. Hudson v.United States, In Hudson, which involved a double jeopardy challenge to monetary penalties and occupational debarment, this Court expressly disapproved of evaluating the civil nature of an ct by reference to the effect that ct has on a single individual. Instead, courts must evaluate the question by reference to a variety of factors "`considered in relation to the statute on its face' "; the clearest proof is required to override legislative intent and conclude that an ct denominated civil is punitive in purpose or effect. ). With this in mind, we turn to the Court of ppeals' determination that respondent could raise an "as-applied" challenge to the ct on double jeopardy and ex post facto grounds and seek release from confinement. Respondent essentially claims that the conditions of his confinement at the Center are too restrictive, that the conditions are incompatible with treatment, and that the system is designed to result in indefinite confinement. Respondent's claims are in many respects like the claims presented to the Court in where we concluded that the conditions of confinement were largely explained by the State's goal to incapacitate, not to punish. -. Nevertheless, *263 we do not deny that some of respondent's allegations are serious. Nor do we express any view as to how his allegations would bear on a court determining in the first instance whether Washington's confinement scheme is Here, we evaluate respondent's allegations as presented in a double jeopardy and ex post facto challenge under the assumption that the ct is We hold that respondent cannot obtain release through an "as-applied" challenge to the Washington ct on double jeopardy and ex post facto grounds. We agree with petitioner that an "as-applied" analysis would prove unworkable. Such an analysis would never conclusively resolve whether a particular scheme is punitive and would thereby prevent a final determination of the scheme's validity under the Double Jeopardy and Ex Post Facto Clauses. Brief for Petitioner 30; Reply Brief for Petitioner 9. Unlike a fine, confinement is not a fixed event. s petitioner notes, it extends over time under conditions that are subject to change. The particular features of confinement may affect how a confinement scheme is evaluated to determine whether it is civil rather than punitive, but it remains no less true that the query must be answered definitively. The civil nature of a confinement scheme cannot be altered based merely on vagaries in the implementation of the authorizing statute. Respondent contends that the Ninth Circuit's "as-applied" analysis comports with this Court's precedents. He points out that this Court has considered conditions of confinement in evaluating the validity of confinement schemes in the past. Brief for Respondent 11-16, 29 ; United ; llen v. ; ). ll of those cases, however, presented the question whether the ct at issue was punitive. Permitting respondent's as-applied challenge would invite an end run around the Washington Supreme Court's decision that the *264 ct is civil in circumstances where a direct attack on that decision is not before this Court. Justice Thomas, concurring in the judgment, takes issue with our view that the question before the Court concerns an as-applied challenge to a civil ct. He first contends that respondent's challenge is not a true "as-applied" challenge because respondent does not claim that the statute "`by its own terms' is unconstitutional as applied but rather that the statute is not being applied according to its terms at all." Post, at 271. We respectfully disagree. The ct requires "adequate care and individualized treatment," Wash. Rev. Code 71.09.080(2) but the ct is silent with respect to the confinement conditions required at the Center, and that is the source of many of respondent's complaints, see Justice Thomas next contends that we incorrectly assume that the ct is civil, instead of viewing the ct as "`otherwise civil,' or civil `on its face.' " Post, at 270 (emphasis added by Thomas, J.). However the Washington ct is described, our analysis in this case turns on the prior finding by the Washington Supreme Court that the ct is civil, and this Court's decision in that a nearly identical ct was Petitioner could not have claimed that the Washington ct is "otherwise" or "facially" civil without relying on those prior decisions. In dissent, Justice Stevens argues that we "incorrectly assum[e]" that the ct is "necessarily civil," post, at 275, but the case has reached this Court under that very assumption. The Court of ppeals recognized that the ct is civil, and treated respondent's claim as an individual, "as-applied" challenge to the ct. The Court of ppeals then remanded the case to the District Court for an evidentiary hearing to determine respondent's conditions of confinement. Contrary to the dissent's characterization of the case, the Court of ppeals did not purport to undermine the validity of the Washington ct as a civil confinement scheme. The court did not conclude that respondent's allegations, if substantiated, *265 would be sufficient to refute the Washington Supreme Court's conclusion that the ct is civil, and to require the release of all those confined under its authority. The Ninth Circuit addressed only respondent's individual case, and we do not decide claims that are not presented by the decision below. Matsushita Elec. Industrial We reject the Ninth Circuit's "asapplied" analysis for double jeopardy and ex post facto claims as fundamentally flawed. III Our decision today does not mean that respondent and others committed as sexually violent predators have no remedy for the alleged conditions and treatment regime at the Center. The text of the Washington ct states that those confined under its authority have the right to adequate care and individualized treatment. Wash. Rev. Code 71.09.080(2) ; Brief for Petitioner 14. s petitioner acknowledges, if the Center fails to fulfill its statutory duty, those confined may have a state law cause of action. Tr. of Oral rg. 6, 10-11, 52. It is for the Washington courts to determine whether the Center is operating in accordance with state law and provide a remedy. State courts, in addition to federal courts, remain competent to adjudicate and remedy challenges to civil confinement schemes arising under the Federal Constitution. s noted above, the Washington Supreme Court has already held that the Washington ct is civil in nature, designed to incapacitate and to treat. In re -1000. ccordingly, due process requires that the conditions and duration of confinement under the ct bear some reasonable relation to the purpose for which persons are committed. ; berg v. Romeo, ; Finally, we note that a 1983 action against the Center is pending in the Western District of Washington. See *266 at 257. The Center operates under an injunction that requires it to adopt and implement a plan for training and hiring competent sex offender therapists; to improve relations between residents and treatment providers; to implement a treatment program for residents containing elements required by prevailing professional standards; to develop individual treatment programs; and to provide a psychologist or psychiatrist expert in the diagnosis and treatment of sex offenders to supervise the staff. pp. 67. Special Master has assisted in bringing the Center into compliance with the injunction. In its most recent published opinion on the matter, the District Court noted some progress at the Center in meeting the requirements of the injunction. -1155. This case gives us no occasion to consider how the civil nature of a confinement scheme relates to other constitutional challenges, such as due process, or to consider the extent to which a court may look to actual conditions of confinement and implementation of the statute to determine in the first instance whether a confinement scheme is civil in nature. Justice Scalia, concurring, contends that conditions of confinement are irrelevant to determining whether an ct is civil unless state courts have interpreted the ct as permitting those conditions. By contrast, Justice Stevens would consider conditions of confinement at any time in order to gain "full knowledge of the effects of the statute." Post, at 277. Whether a confinement scheme is punitive has been the threshold question for some constitutional challenges. See, e. g., ; United ; llen v. (Fifth mendment privilege against self-incrimination). Whatever these cases may suggest about the relevance of conditions of confinement, they do not endorse the approach of the dissent, which would render the inquiry into the "effects *267 of the statute," post, at 277, completely open ended. In one case, the Court refused to consider alleged confinement conditions because the parties had entered into a consent decree to improve conditions. Flores, The Court presumed that conditions were in compliance with the requirements of the consent decree. In another case, the Court found that anecdotal case histories and a statistical study were insufficient to render a regulatory confinement scheme punitive. In such cases, we have decided whether a confinement scheme is punitive notwithstanding the inherent difficulty in ascertaining current conditions and predicting future events. We have not squarely addressed the relevance of conditions of confinement to a first instance determination, and that question need not be resolved here. n ct, found to be civil, cannot be deemed punitive "as applied" to a single individual in violation of the Double Jeopardy and Ex Post Facto Clauses and provide cause for release. The judgment of the United States Court of ppeals for the Ninth Circuit is therefore reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. |
Justice Rehnquist | majority | false | United States v. Mazurie | 1975-01-21T00:00:00 | null | https://www.courtlistener.com/opinion/109134/united-states-v-mazurie/ | https://www.courtlistener.com/api/rest/v3/clusters/109134/ | 1,975 | 1974-026 | 2 | 9 | 0 | The respondents were convicted of introducing spirituous beverages into Indian country, in violation of 18 U.S. C. § 1154.[1] The Court of Appeals for the Tenth *546 Circuit reversed. 487 F.2d 14 (1973). We granted certiorari, 415 U.S. 947 (1974), in order to consider the Solicitor General's contentions that 18 U.S. C. § 1154 is not unconstitutionally vague, that Congress has the constitutional authority to control the sale of alcoholic beverages by non-Indians on fee-patented land within the boundaries of an Indian reservation, and that Congress could validly make a delegation of this authority to a reservation's tribal council. We reverse the Court of Appeals.
I
The Wind River Reservation was established by treaty in 1868. Located in a rather arid portion of central Wyoming, at least some of its 2,300,000 acres have been described by Mr. Justice Cardozo as "fair and fertile," Shoshone Tribe v. United States, 299 U.S. 476, 486 (1937). It straddles the Wind River, with its remarkable canyon, and lies in a mile-high basin at the foot of the Wind River Mountains, whose rugged, glaciated peaks and ridges form a portion of the Continental Divide.[2] The reservation is occupied by the Shoshone and Arapahoe Tribes. Although these tribes were once "ancestral foes," ibid., they are today jointly known as the Wind River Tribes. As a result of various patents, substantial tracts of non-Indian-held land are scattered within the reservation's boundaries. *547 It was on such non-Indian land that respondents Martin and Margaret Mazurie operated their bar, which did business under the corporate name of the Blue Bull, Inc.
Before 1953 federal law generally prohibited the introduction of alcoholic beverages into "Indian country." 18 U.S. C. § 1154 (a). "Indian country" was defined by 18 U.S. C. § 1151 to include non-Indian-held lands "within the limits of any Indian reservation."[3] In 1949, the term was given a narrower meaning, insofar as relevant to the liquor prohibition, so as to exclude both fee-patented lands within "non-Indian communities" and rights-of-way through reservations. Act of May 24, 1949, 63 Stat. 94, 18 U.S. C. § 1154 (c), supra, n. 1. The quoted term is not defined, a fact which creates problems with which we shall shortly deal. In 1953 Congress passed local-option legislation allowing Indian tribes, with the approval of the Secretary of the Interior, to regulate the introduction of liquor into Indian country, so long as state law was not violated. Act of Aug. 15, 1953, 67 Stat. 586, 18 U.S. C. § 1161.[4] The Wind River Tribes responded to this option by adopting an ordinance which permitted *548 liquor sales on the reservation if made in accordance with Wyoming law. When the Blue Bull originally opened, a liquor license had been issued to it by Fremont County. Wyo., and its operation was therefore consistent with that tribal ordinance. But in 1971 the Wind River Tribes adopted a new liquor ordinance, Ordinance No. 26.[5] That ordinance required that retail liquor outlets within Indian country obtain both tribal and state licenses.
In 1972, the Mazuries applied for a tribal license, after warnings that they would be subject to criminal charges if they continued to operate without one. The tribes held a public hearing which Martin Mazurie and the Mazuries' lawyer attended. Witnesses protested grant of the license, complaining of singing and shooting at late hours, disturbances of elderly residents of a nearby housing development, and the permitting of Indian minors in the bar. The application was denied.
Thereafter, the Mazuries closed the Blue Bull. Three weeks later they reopened it. It remained in operation for approximately a year, until federal officers seized its alcoholic beverages, and this criminal prosecution was initiated.[6]
The case was tried to the District Court without a jury. Since most of the factual issues were disposed of by stipulations,[7] the testimony at trial primarily dealt with *549 whether the bar was within "Indian country." On the basis of testimony about the Blue Bull's location, and about the racial composition of residents of the surrounding area, the court concluded that the bar was so located. Holding that federal authority could reach non-Indians located on privately held land within a reservation's boundaries, the court entered judgments of conviction. Each respondent was fined $100.
The Court of Appeals reversed the convictions. It concluded that the prosecution had not carried its burden of proving beyond a reasonable doubt that the bar was not excluded from Indian country by the § 1154 (c) exception for "fee-patented lands in non-Indian communities."[8] This conclusion was tied directly to the more basic holding:
"[T]he terminology of `non-Indian community' is not capable of sufficiently precise definition to serve as *550 an element of the crime herein considered . . . . The statute is thus fatally defective by reason of this indefinite and vague terminology." 487 F.2d, at 18.
As a second basis for reversal, the court held that insofar as 18 U.S. C. § 1161 authorized Indian tribes to adopt ordinances controlling the introduction by non-Indians of alcoholic beverages onto non-Indian land, it was an invalid congressional attempt to delegate authority. The Court of Appeals also suggested that Congress itself could not regulate the sale of alcohol by non-Indians on fee-patented non-Indian lands within Indian reservations.
II
It is well established that vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand. United States v. National Dairy Products Corp., 372 U.S. 29 (1963). In determining whether § 1154 (c) is unconstitutionally vague as to respondents, we must therefore first consider the evidence as to the location of the Blue Bull.[9]
*551 The evidence showed that the bar was located on the outskirts of Fort Washakie, Wyo., an unincorporated village bearing the name of the man who was chief of the Shoshones during their early years on the Wind River Reservation. Shoshone Tribe v. United States, 299 U. S., at 486; Harmston, supra, n. 2, at 3-4. Fort Washakie is the location of the Wind River Agency of the Bureau of Indian Affairs, and of the Tribal Headquarters of the Wind River Tribes. One witness testified that the village was an "Indian community." App 49. The evidence also showed that of the 212 families living within a 20-square-mile area roughly centered on the Blue Bull, 170 were Indian families, 41 were non-Indians, and one was mixed. A large-scale United States Geological Survey map was introduced to show the limits of this housing survey. It indicates that the survey included all settlements within the Fort Washakie area, and that the nearest not-included concentrations of housing were at Saint James Church and Ethete, some four miles beyond the boundaries of the survey and some six miles from Fort Washakie. The evidence also established that the state school serving Fort Washakie, and located about two and one-half miles from the Blue Bull, had a total enrollment of 243 students, 223 of whom were Indian.
Other evidence bearing on whether the Blue Bull was located in a non-Indian community was Martin Mazurie's testimony that the bar served both Indians and non-Indians, and that: "We are kind of out there by ourselves, you know." App. 70. A transcript of the hearing on *552 the Mazuries' application to the tribes for a retail liquor license was also admitted at the trial. That transcript indicates that the Blue Bull was located near a public housing development populated largely if not entirely by Indians. Residents of this development complained that persons leaving the bar late at night, and for one reason or another having either no transportation or no destination, would wander into the development.
There was no testimony that the Blue Bull was in a non-Indian community. The defense did obtain acknowledgments by prosecution witnesses that they could not precisely state the boundaries of the Fort Washakie Indian community. Otherwise, examination by the defense was directed at establishing that the term "Indian" was without precise meaning, and that the State of Wyoming generally had jurisdiction over non-Indians and their lands within the reservation.
We think that the foregoing evidence was sufficient to justify the District Court's implied conclusion that Fort Washakie and its surrounding settlements did not compose a non-Indian community. We do not read the opinion of the Court of Appeals as reaching a conclusion contrary to that which we have just stated. That court instead based its decision on the proposition that such proof did not go far enough, a view generated by its opinion of the requirements this statute must meet in order to avoid the vice of vagueness. The Court of Appeals was looking for proof beyond a reasonable doubt of precisely defined concepts of "Indian" and "community." We gather that it expected persons treated as "Indians" in the housing and school surveys to be proved to satisfy a specific statutory definition. Similarly, it apparently expected that proof concerning the "community" should have conformed to some specific statutory definition, presumably one keyed to a geographical area with precise boundaries.
*553 We believe that the Court of Appeals erred by holding that the Constitution requires proof of such precisely defined concepts. The prosecution was required to do no more than prove that the Blue Bull was not located in a non-Indian community, where that term has a meaning sufficiently precise for a man of average intelligence to "reasonably understand that his contemplated conduct is proscribed." United States v. National Dairy Products Corp., 372 U. S., at 32-33. Given the nature of the Blue Bull's location and surrounding population, the statute was sufficient to advise the Mazuries that their bar was not excepted from tribal regulation by virtue of being located in a non-Indian community.[10]
III
The Court of Appeals expressed doubt that "the Government has the power to regulate a business on the land it granted in fee without restrictions." 487 F.2d, at 18. Because that court went on to hold that even if Congress did possess such power, it could not be delegated to an Indian tribe, that court did not find it necessary to *554 resolve the issue of congressional power. We do, however, reach the issue, because we hereinafter conclude that federal authority was properly delegated to the Indian tribes. We conclude that federal authority is adequate, even though the lands were held in fee by non-Indians, and even though the persons regulated were non-Indians.
Article I, § 8, of the Constitution gives Congress power "[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." This Court has repeatedly held that this clause affords Congress the power to prohibit or regulate the sale of alcoholic beverages to tribal Indians, wherever situated, and to prohibit or regulate the introduction of alcoholic beverages into Indian country.[11]United States v. Holliday, 3 Wall. 407, 417-418 (1866); United States v. Forty-three Gallons of Whiskey, 93 U.S. 188, 194-195 (1876); Ex parte Webb, 225 U.S. 663, 683-684 (1912); Perrin v. United States, 232 U.S. 478, 482 (1914); Johnson v. Gearlds, 234 U.S. 422, 438-439 (1914); United States v. Nice, 241 U.S. 591, 597 (1916).
Perrin v. United States, supra, demonstrates the controlling principle. It dealt with the sale of intoxicating beverages within premises owned by non-Indians, on privately held land in an organized non-Indian municipality. The land originally had been included in the Yankton Sioux Indian Reservation, but had been ceded to the United States. The cession agreement, as ratified and confirmed by Congress, specified that alcoholic beverages would never be sold on the ceded land. The land *555 was subsequently opened to private non-Indian settlers. In upholding Perrin's conviction, this Court stated:
"The power of Congress to prohibit the introduction of intoxicating liquors into an Indian reservation, wheresoever situate, and to prohibit traffic in such liquors with tribal Indians, whether upon or off a reservation and whether within or without the limits of a State, does not admit of any doubt. It arises in part from the clause in the Constitution investing Congress with authority `to regulate commerce with foreign nations, and among the several States, and with the Indian tribes,' and in part from the recognized relation of tribal Indians to the Federal Government." 232 U.S., at 482.
Seymour v. Superintendent, 368 U.S. 351 (1962), is a more recent indication of congressional authority over events occurring on non-Indian land within a reservation. The case concerned an Indian's challenge to a state burglary conviction. The Indian contended that because the offense took place within "Indian country," it was within the exclusive jurisdiction of the United States by virtue of 18 U.S. C. § 1153. This Court agreed, despite the fact that the crime occurred on land patented in fee to non-Indians. While the opinion did not address the constitutional issue, it did reject a variety of statutory arguments for excluding the crime's situs from 18 U.S. C. § 1151's definition of "Indian country." Of significance for our purposes is the fact that Congress' authority to define "Indian country" so broadly, and to supersede state jurisdiction within the defined area, went both unchallenged by the parties and unquestioned by this Court.
We hold that neither the Constitution nor our previous cases leave any room for doubt that Congress possesses *556 the authority to regulate the distribution of alcoholic beverages by establishments such as the Blue Bull.
IV
The Court of Appeals said, however, that even if Congress possessed authority to regulate the Blue Bull, it could not delegate such authority to the Indian tribes. The court reasoned as follows:
"The tribal members are citizens of the United States. It is difficult to see how such an association of citizens could exercise any degree of governmental authority or sovereignty over other citizens who do not belong, and who cannot participate in any way in the tribal organization. The situation is in no way comparable to a city, county, or special district under state laws. There cannot be such a separate `nation' of United States citizens within the boundaries of the United States which has any authority, other than as landowners, over individuals who are excluded as members.
.....
"The purported delegation of authority to the tribal officials contained in 18 U.S. C. § 1161 is therefore invalid. Congress cannot delegate its authority to a private, voluntary organization, which is obviously not a governmental agency, to regulate a business on privately owned lands, no matter where located. It is obvious that the authority of Congress under the Constitution to regulate commerce with Indian Tribes is broad, but it cannot encompass the relationships here concerned." 487 F.2d, at 19.
This Court has recognized limits on the authority of Congress to delegate its legislative power. Panama Refining Co. v. Ryan, 293 U.S. 388 (1935). Those limitations are, however, less stringent in cases where the entity *557 exercising the delegated authority itself possesses independent authority over the subject matter. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319-322 (1936). Thus it is an important aspect of this case that Indian tribes are unique aggregations possessing attributes of sovereignty over both their members and their territory, Worcester v. Georgia, 6 Pet. 515, 557 (1832); they are "a separate people" possessing "the power of regulating their internal and social relations. . . ," United States v. Kagama, 118 U.S. 375, 381-382 (1886); McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 173 (1973).
Cases such as Worcester, supra, and Kagama, supra, surely establish the proposition that Indian tribes within "Indian country" are a good deal more than "private, voluntary organizations," and they thus undermine the rationale of the Court of Appeals' decision. These same cases, in addition, make clear that when Congress delegated its authority to control the introduction of alcoholic beverages into Indian country, it did so to entities which possess a certain degree of independent authority over matters that affect the internal and social relations of tribal life. Clearly the distribution and use of intoxicants is just such a matter. We need not decide whether this independent authority is itself sufficient for the tribes to impose Ordinance No. 26. It is necessary only to state that the independent tribal authority is quite sufficient to protect Congress' decision to vest in tribal councils this portion of its own authority "to regulate Commerce . . . with the Indian tribes." Cf. United States v. Curtiss-Wright Export Corp., supra.
The fact that the Mazuries could not become members of the tribe, and therefore could not participate in the tribal government, does not alter our conclusion. This claim, that because respondents are non-Indians Congress *558 could not subject them to the authority of the Tribal Council with respect to the sale of liquor,[12] is answered by this Court's opinion in Williams v. Lee, 358 U.S. 217 (1959). In holding that the authority of tribal courts could extend over non-Indians, insofar as concerned their transactions on a reservation with Indians, we stated:
"It is immaterial that respondent is not an Indian. He was on the Reservation and the transaction with an Indian took place there. The cases in this Court have consistently guarded the authority of Indian governments over their reservations. Congress recognized this authority in the Navajos in the Treaty of 1868, and has done so ever since. If this power is to be taken away from them, it is for Congress to do it. Lone Wolf v. Hitchcock, 187 U.S. 553, 564-566." Id., at 223 (citations omitted).
*559 For the foregoing reasons the judgment of the Court of Appeals must be reversed, and the convictions of respondents reinstated.
Reversed.
| The respondents were convicted of introducing spirituous beverages into Indian country, in violation of 18 U.S. C. 1154.[1] The Court of Appeals for the Tenth *546 Circuit reversed. We granted certiorari, in order to consider the Solicitor General's contentions that 18 U.S. C. 1154 is not unconstitutionally vague, that Congress has the constitutional authority to control the sale of alcoholic beverages by non-Indians on fee-patented land within the boundaries of an Indian reservation, and that Congress could validly make a delegation of this authority to a reservation's tribal council. We reverse the Court of Appeals. I The Wind River Reservation was established by treaty in 1868. Located in a rather arid portion of central Wyoming, at least some of its 2,300,000 acres have been described by Mr. Justice Cardozo as "fair and fertile," Shoshone It straddles the Wind River, with its remarkable canyon, and lies in a mile-high basin at the foot of the Wind River Mountains, whose rugged, glaciated peaks and ridges form a portion of the Continental Divide.[2] The reservation is occupied by the Shoshone and Arapahoe Tribes. Although these tribes were once "ancestral foes," ibid., they are today jointly known as the Wind River Tribes. As a result of various patents, substantial tracts of non-Indian-held land are scattered within the reservation's boundaries. *547 It was on such non-Indian land that respondents Martin and Margaret Mazurie operated their bar, which did business under the corporate name of the Blue Bull, Inc. Before 1953 federal law generally prohibited the introduction of alcoholic beverages into "Indian country." 18 U.S. C. 1154 (a). "Indian country" was defined by 18 U.S. C. 1151 to include non-Indian-held lands "within the limits of any Indian reservation."[3] In 1949, the term was given a narrower meaning, insofar as relevant to the liquor prohibition, so as to exclude both fee-patented lands within "non-Indian communities" and rights-of-way through reservations. Act of May 24, 1949, 18 U.S. C. 1154 (c), The quoted term is not defined, a fact which creates problems with which we shall shortly deal. In 1953 Congress passed local-option legislation allowing Indian tribes, with the approval of the Secretary of the Interior, to regulate the introduction of liquor into Indian country, so long as state law was not violated. Act of Aug. 15, 1953, 18 U.S. C. 1161.[4] The Wind River Tribes responded to this option by adopting an ordinance which permitted *548 liquor sales on the reservation if made in accordance with Wyoming law. When the Blue Bull originally opened, a liquor license had been issued to it by Fremont County. Wyo., and its operation was therefore consistent with that tribal ordinance. But in 1971 the Wind River Tribes adopted a new liquor ordinance, Ordinance No. 26.[5] That ordinance required that retail liquor outlets within Indian country obtain both tribal and state licenses. In 1972, the Mazuries applied for a tribal license, after warnings that they would be subject to criminal charges if they continued to operate without one. The tribes held a public hearing which Martin Mazurie and the Mazuries' lawyer attended. Witnesses protested grant of the license, complaining of singing and shooting at late hours, disturbances of elderly residents of a nearby housing development, and the permitting of Indian minors in the bar. The application was denied. Thereafter, the Mazuries closed the Blue Bull. Three weeks later they reopened it. It remained in operation for approximately a year, until federal officers seized its alcoholic beverages, and this criminal prosecution was initiated.[6] The case was tried to the District Court without a jury. Since most of the factual issues were disposed of by stipulations,[7] the testimony at trial primarily dealt with *549 whether the bar was within "Indian country." On the basis of testimony about the Blue Bull's location, and about the racial composition of residents of the surrounding area, the court concluded that the bar was so located. Holding that federal authority could reach non-Indians located on privately held land within a reservation's boundaries, the court entered judgments of conviction. Each respondent was fined $100. The Court of Appeals reversed the convictions. It concluded that the prosecution had not carried its burden of proving beyond a reasonable doubt that the bar was not excluded from Indian country by the 1154 (c) exception for "fee-patented lands in non-Indian communities."[8] This conclusion was tied directly to the more basic holding: "[T]he terminology of `non-Indian community' is not capable of sufficiently precise definition to serve as *550 an element of the crime herein considered The statute is thus fatally defective by reason of this indefinite and vague terminology." As a second basis for reversal, the court held that insofar as 18 U.S. C. 1161 authorized Indian tribes to adopt ordinances controlling the introduction by non-Indians of alcoholic beverages onto non-Indian land, it was an invalid congressional attempt to delegate authority. The Court of Appeals also suggested that Congress itself could not regulate the sale of alcohol by non-Indians on fee-patented non-Indian lands within Indian reservations. II It is well established that vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand. United In determining whether 1154 (c) is unconstitutionally vague as to respondents, we must therefore first consider the evidence as to the location of the Blue Bull.[9] *551 The evidence showed that the bar was located on the outskirts of Fort Washakie, Wyo., an unincorporated village bearing the name of the man who was chief of the Shoshones during their early years on the Wind River Reservation. Shoshone 299 U. S., at ; at 3-4. Fort Washakie is the location of the Wind River Agency of the Bureau of Indian Affairs, and of the Tribal Headquarters of the Wind River Tribes. One witness testified that the village was an "Indian community." App 49. The evidence also showed that of the 212 families living within a 20-square-mile area roughly centered on the Blue Bull, 170 were Indian families, 41 were non-Indians, and one was mixed. A large-scale United Geological Survey map was introduced to show the limits of this housing survey. It indicates that the survey included all settlements within the Fort Washakie area, and that the nearest not-included concentrations of housing were at Saint James Church and Ethete, some four miles beyond the boundaries of the survey and some six miles from Fort Washakie. The evidence also established that the state school serving Fort Washakie, and located about two and one-half miles from the Blue Bull, had a total enrollment of 243 students, 223 of whom were Indian. Other evidence bearing on whether the Blue Bull was located in a non-Indian community was Martin Mazurie's testimony that the bar served both Indians and non-Indians, and that: "We are kind of out there by ourselves, you know." App. 70. A transcript of the hearing on *552 the Mazuries' application to the tribes for a retail liquor license was also admitted at the trial. That transcript indicates that the Blue Bull was located near a public housing development populated largely if not entirely by Indians. Residents of this development complained that persons leaving the bar late at night, and for one reason or another having either no transportation or no destination, would wander into the development. There was no testimony that the Blue Bull was in a non-Indian community. The defense did obtain acknowledgments by prosecution witnesses that they could not precisely state the boundaries of the Fort Washakie Indian community. Otherwise, examination by the defense was directed at establishing that the term "Indian" was without precise meaning, and that the State of Wyoming generally had jurisdiction over non-Indians and their lands within the reservation. We think that the foregoing evidence was sufficient to justify the District Court's implied conclusion that Fort Washakie and its surrounding settlements did not compose a non-Indian community. We do not read the opinion of the Court of Appeals as reaching a conclusion contrary to that which we have just stated. That court instead based its decision on the proposition that such proof did not go far enough, a view generated by its opinion of the requirements this statute must meet in order to avoid the vice of vagueness. The Court of Appeals was looking for proof beyond a reasonable doubt of precisely defined concepts of "Indian" and "community." We gather that it expected persons treated as "Indians" in the housing and school surveys to be proved to satisfy a specific statutory definition. Similarly, it apparently expected that proof concerning the "community" should have conformed to some specific statutory definition, presumably one keyed to a geographical area with precise boundaries. *553 We believe that the Court of Appeals erred by holding that the Constitution requires proof of such precisely defined concepts. The prosecution was required to do no more than prove that the Blue Bull was not located in a non-Indian community, where that term has a meaning sufficiently precise for a man of average intelligence to "reasonably understand that his contemplated conduct is proscribed." United -33. Given the nature of the Blue Bull's location and surrounding population, the statute was sufficient to advise the Mazuries that their bar was not excepted from tribal regulation by virtue of being located in a non-Indian community.[10] III The Court of Appeals expressed doubt that "the Government has the power to regulate a business on the land it granted in fee without restrictions." Because that court went on to hold that even if Congress did possess such power, it could not be delegated to an Indian tribe, that court did not find it necessary to *554 resolve the issue of congressional power. We do, however, reach the issue, because we hereinafter conclude that federal authority was properly delegated to the Indian tribes. We conclude that federal authority is adequate, even though the lands were held in fee by non-Indians, and even though the persons regulated were non-Indians. Article I, 8, of the Constitution gives Congress power "[t]o regulate Commerce with foreign Nations, and among the several and with the Indian Tribes." This Court has repeatedly held that this clause affords Congress the power to prohibit or regulate the sale of alcoholic beverages to tribal Indians, wherever situated, and to prohibit or regulate the introduction of alcoholic beverages into Indian country.[11]United v. Holliday, ; United v. Forty-three Gallons of Whiskey, ; Ex parte Webb, ; Perrin v. United ; ; United v. Nice, Perrin v. United demonstrates the controlling principle. It dealt with the sale of intoxicating beverages within premises owned by non-Indians, on privately held land in an organized non-Indian municipality. The land originally had been included in the Yankton Sioux Indian Reservation, but had been ceded to the United The cession agreement, as ratified and confirmed by Congress, specified that alcoholic beverages would never be sold on the ceded land. The land *555 was subsequently opened to private non-Indian settlers. In upholding Perrin's conviction, this Court stated: "The power of Congress to prohibit the introduction of intoxicating liquors into an Indian reservation, wheresoever situate, and to prohibit traffic in such liquors with tribal Indians, whether upon or off a reservation and whether within or without the limits of a State, does not admit of any doubt. It arises in part from the clause in the Constitution investing Congress with authority `to regulate commerce with foreign nations, and among the several and with the Indian tribes,' and in part from the recognized relation of tribal Indians to the Federal Government." 232 U.S., at is a more recent indication of congressional authority over events occurring on non-Indian land within a reservation. The case concerned an Indian's challenge to a state burglary conviction. The Indian contended that because the offense took place within "Indian country," it was within the exclusive jurisdiction of the United by virtue of 18 U.S. C. 1153. This Court agreed, despite the fact that the crime occurred on land patented in fee to non-Indians. While the opinion did not address the constitutional issue, it did reject a variety of statutory arguments for excluding the crime's situs from 18 U.S. C. 1151's definition of "Indian country." Of significance for our purposes is the fact that Congress' authority to define "Indian country" so broadly, and to supersede state jurisdiction within the defined area, went both unchallenged by the parties and unquestioned by this Court. We hold that neither the Constitution nor our previous cases leave any room for doubt that Congress possesses *556 the authority to regulate the distribution of alcoholic beverages by establishments such as the Blue Bull. IV The Court of Appeals said, however, that even if Congress possessed authority to regulate the Blue Bull, it could not delegate such authority to the Indian tribes. The court reasoned as follows: "The tribal members are citizens of the United It is difficult to see how such an association of citizens could exercise any degree of governmental authority or sovereignty over other citizens who do not belong, and who cannot participate in any way in the tribal organization. The situation is in no way comparable to a city, county, or special district under state laws. There cannot be such a separate `nation' of United citizens within the boundaries of the United which has any authority, other than as landowners, over individuals who are excluded as members. "The purported delegation of authority to the tribal officials contained in 18 U.S. C. 1161 is therefore invalid. Congress cannot delegate its authority to a private, voluntary organization, which is obviously not a governmental agency, to regulate a business on privately owned lands, no matter where located. It is obvious that the authority of Congress under the Constitution to regulate commerce with Indian Tribes is broad, but it cannot encompass the relationships here concerned." This Court has recognized limits on the authority of Congress to delegate its legislative power. Panama Refining Those limitations are, however, less stringent in cases where the entity * exercising the delegated authority itself possesses independent authority over the subject matter. United v. Curtiss-Wright Export Thus it is an important aspect of this case that Indian tribes are unique aggregations possessing attributes of sovereignty over both their members and their territory, ; they are "a separate people" possessing "the power of regulating their internal and social relations." United v. ; Cases such as and surely establish the proposition that Indian tribes within "Indian country" are a good deal more than "private, voluntary organizations," and they thus undermine the rationale of the Court of Appeals' decision. These same cases, in addition, make clear that when Congress delegated its authority to control the introduction of alcoholic beverages into Indian country, it did so to entities which possess a certain degree of independent authority over matters that affect the internal and social relations of tribal life. Clearly the distribution and use of intoxicants is just such a matter. We need not decide whether this independent authority is itself sufficient for the tribes to impose Ordinance No. 26. It is necessary only to state that the independent tribal authority is quite sufficient to protect Congress' decision to vest in tribal councils this portion of its own authority "to regulate Commerce with the Indian tribes." Cf. United v. Curtiss-Wright Export The fact that the Mazuries could not become members of the tribe, and therefore could not participate in the tribal government, does not alter our conclusion. This claim, that because respondents are non-Indians Congress *558 could not subject them to the authority of the Tribal Council with respect to the sale of liquor,[12] is answered by this Court's opinion in In holding that the authority of tribal courts could extend over non-Indians, insofar as concerned their transactions on a reservation with Indians, we stated: "It is immaterial that respondent is not an Indian. He was on the Reservation and the transaction with an Indian took place there. The cases in this Court have consistently guarded the authority of Indian governments over their reservations. Congress recognized this authority in the Navajos in the Treaty of 1868, and has done so ever since. If this power is to be taken away from them, it is for Congress to do it. Lone" *559 For the foregoing reasons the judgment of the Court of Appeals must be reversed, and the convictions of respondents reinstated. Reversed. |
Justice Souter | dissenting | false | Georgia v. Ashcroft, Attorney General | 2003-06-26T00:00:00 | null | https://www.courtlistener.com/opinion/130158/georgia-v-ashcroft-attorney-general/ | https://www.courtlistener.com/api/rest/v3/clusters/130158/ | 2,003 | 2002-081 | 1 | 5 | 4 | 70
* I agree with the Court that reducing the number of majority-minority districts within a State would not necessarily amount to retrogression barring preclearance under § 5 of the Voting Rights Act of 1965. See ante, at 480-482. The prudential objective of § 5 is hardly betrayed if a State can show that a new districting plan shifts from supermajority districts, in which minorities can elect their candidates of choice by their own voting power, to coalition districts, in which minorities are in fact shown to have a similar opportunity when joined by predictably supportive nonminority voters. Cf. Johnson v. De Grandy, 512 U.S. 997, 1020 (1994) (explaining in the context of § 2 that although "society's racial and ethnic cleavages sometimes necessitate majority-minority districts to ensure equal political and electoral opportunity, that should not obscure the fact that there are communities in which minority citizens are able to form coalitions with voters from other racial and ethnic groups, having no need to be a majority within a single district in order to elect candidates of their choice").
71
Before a State shifts from majority-minority to coalition districts, however, the State bears the burden of proving that nonminority voters will reliably vote along with the minority. See, e. g., Reno v. Bossier Parish School Bd., 520 U.S. 471, 478 (1997). It must show not merely that minority voters in new districts may have some influence, but that minority voters will have effective influence translatable into probable election results comparable to what they enjoyed under the existing district scheme. And to demonstrate this, a State must do more than produce reports of minority voting age percentages; it must show that the probable voting behavior of nonminority voters will make coalitions with minorities a real prospect. See, e. g., Pildes, Is Voting-Rights Law Now at War With Itself? Social Science and Voting Rights in the 2000s, 80 N. C. L. Rev. 1517, 1539 (2002). If the State's evidence fails to convince a factfinder that high racial polarization in voting is unlikely, or that high white crossover voting is likely, or that other political and demographic facts point to probable minority effectiveness, a reduction in supermajority districts must be treated as potentially and fatally retrogressive, the burden of persuasion always being on the State.
72
The District Court majority perfectly well understood all this and committed no error. Error enters this case here in this Court, whose majority unmoors § 5 from any practical and administrable conception of minority influence that would rule out retrogression in a transition from majority-minority districts, and mistakes the significance of the evidence supporting the District Court's decision.
II
73
The Court goes beyond recognizing the possibility of coalition districts as nonretrogressive alternatives to those with majorities of minority voters when it redefines effective voting power in § 5 analysis without the anchoring reference to electing a candidate of choice. It does this by alternatively suggesting that a potentially retrogressive redistricting plan could satisfy § 5 if a sufficient number of so-called "influence districts," in addition to "coalitio[n] districts," were created, ante, at 483, 484, or if the new plan provided minority groups with an opportunity to elect a particularly powerful candidate, ante, at 483-484. On either alternative, the § 5 requirement that voting changes be nonretrogressive is substantially diminished and left practically unadministrable.
74
* The Court holds that a State can carry its burden to show a nonretrogressive degree of minority "influence" by demonstrating that "`candidates elected without decisive minority support would be willing to take the minority's interests into account.'" Ante, at 482 (quoting Thornburg v. Gingles, 478 U.S. 30, 100 (1986) (O'CONNOR, J., concurring in judgment)). But this cannot be right.
75
The history of § 5 demonstrates that it addresses changes in state law intended to perpetuate the exclusion of minority voters from the exercise of political power. When this Court held that a State must show that any change in voting procedure is free of retrogression it meant that changes must not leave minority voters with less chance to be effective in electing preferred candidates than they were before the change. "[T]he purpose of § 5 has always been to insure that no voting-procedure changes would be made that would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise." Beer v. United States, 425 U.S. 130, 141 (1976); see, e. g., id., at 140-141 ("Section 5 was intended `to insure that [the gains thus far achieved in minority political participation] shall not be destroyed through new [discriminatory] procedures and techniques'" (quoting S. Rep. No. 94-295, p. 19 (1975))). In addressing the burden to show no retrogression, therefore, "influence" must mean an opportunity to exercise power effectively.
76
The Court, however, says that influence may be adequate to avoid retrogression from majority-minority districts when it consists not of decisive minority voting power but of sentiment on the part of politicians: influence may be sufficient when it reflects a willingness on the part of politicians to consider the interests of minority voters, even when they do not need the minority votes to be elected. The Court holds, in other words, that there would be no retrogression when the power of a voting majority of minority voters is eliminated, so long as elected politicians can be expected to give some consideration to minority interests.
77
The power to elect a candidate of choice has been forgotten; voting power has been forgotten. It is very hard to see anything left of the standard of nonretrogression, and it is no surprise that the Court's cited precedential support for this reconception, see ante, at 482, consists of a footnote from a dissenting opinion in Shaw v. Hunt, 517 U.S. 899 (1996), and footnote dictum in a case from the Western District of Louisiana.
78
Indeed, to see the trouble ahead, one need only ask how on the Court's new understanding, state legislators or federal preclearance reviewers under § 5 are supposed to identify or measure the degree of influence necessary to avoid the retrogression the Court nominally retains as the § 5 touchstone. Is the test purely ad hominem, looking merely to the apparent sentiments of incumbents who might run in the new districts? Would it be enough for a State to show that an incumbent had previously promised to consider minority interests before voting on legislative measures? Whatever one looks to, however, how does one put a value on influence that falls short of decisive influence through coalition? Nondecisive influence is worth less than majority-minority control, but how much less? Would two influence districts offset the loss of one majority-minority district? Would it take three? Or four? The Court gives no guidance for measuring influence that falls short of the voting strength of a coalition member, let alone a majority of minority voters. Nor do I see how the Court could possibly give any such guidance. The Court's "influence" is simply not functional in the political and judicial worlds.
B
79
Identical problems of comparability and administrability count at least as much against the Court's further gloss on nonretrogression, in its novel holding that a State may trade off minority voters' ability to elect a candidate of their choice against their ability to exert some undefined degree of influence over a candidate likely to occupy a position of official legislative power. See ante, at 483-484. The Court implies that one majority-minority district in which minority voters could elect a legislative leader could replace a larger number of majority-minority districts with ordinary candidates, without retrogression of overall minority voting strength. Under this approach to § 5, a State may value minority votes in a district in which a potential committee chairman might be elected differently from minority votes in a district with ordinary candidates.
80
It is impossible to believe that Congress could ever have imagined § 5 preclearance actually turning on any such distinctions. In any event, if the Court is going to allow a State to weigh minority votes by the ambitiousness of candidates the votes might be cast for, it is hard to see any stopping point. I suppose the Court would not go so far as to give extra points to an incumbent with the charisma to attract a legislative following, but would it value all committee chairmen equally? (The committee chairmen certainly would not.) And what about a legislator with a network of influence that has made him a proven dealmaker? Thus, again, the problem of measurement: is a shift from 10 majority-minority districts to 8 offset by a good chance that 1 of the 8 may elect a new Speaker of the House?
81
I do not fault the Court for having no answers to these questions, for there are no answers of any use under § 5. The fault is more fundamental, and the very fact that the Court's interpretation of nonretrogression under § 5 invites unanswerable questions points to the error of a § 5 preclearance regime that defies reviewable administration. We are left with little hope of determining practically whether a districting shift to one party's overall political advantage can be expected to offset a loss of majority-minority voting power in particular districts; there will simply be greater opportunity to reduce minority voting strength in the guise of obtaining party advantage.
82
One is left to ask who will suffer most from the Court's new and unquantifiable standard. If it should turn out that an actual, serious burden of persuasion remains on the States, States that rely on the new theory of influence should be guaranteed losers: nonretrogression cannot be demonstrated by districts with minority influence too amorphous for objective comparison. But that outcome is unlikely, and if in subsequent cases the Court allows the State's burden to be satisfied on the pretense that unquantifiable influence can be equated with majority-minority power, § 5 will simply drop out as a safeguard against the "unremitting and ingenious defiance of the Constitution" that required the procedure of preclearance in the first place. South Carolina v. Katzenbach, 383 U.S. 301, 309 (1966).
III
83
The District Court never reached the question the Court addresses, of what kind of influence districts (coalition or not) might demonstrate that a decrease in majority-minority districts was not retrogressive. It did not reach this question because it found that the State had not satisfied its burden of persuasion on an issue that should be crucial on any administrable theory:1 the State had not shown the possibility of actual coalitions in the affected districts that would allow any retreat from majority-minority districts without a retrogressive effect. This central evidentiary finding is invulnerable under the correct standard of review.
84
This Court's review of the District Court's factual findings is for clear error. See, e. g., Miller v. Johnson, 515 U.S. 900, 917 (1995); Pleasant Grove v. United States, 479 U.S. 462, 469 (1987); McCain v. Lybrand, 465 U.S. 236, 258 (1984); City of Lockhart v. United States, 460 U.S. 125, 136 (1983). We have no business disturbing the District Court's ruling "simply because we would have decided the case differently," but only if based "on the entire evidence, [we are] left with the definite and firm conviction that a mistake has been committed." Easley v. Cromartie, 532 U.S. 234, 242 (2001) (internal quotation marks omitted). It is not, then, up to us to "decide whether Georgia's State Senate redistricting plan is retrogressive as compared to its previous, benchmark districting plan." Ante, at 466. Our sole responsibility is to see whether the District Court committed clear error in refusing to preclear the plan. It did not.
85
* The District Court began with the acknowledgment (to which we would all assent) that the simple fact of a decrease in black voting age population (BVAP) in some districts is not alone dispositive about whether a proposed plan is retrogressive: "`Unpacking' African American districts may have positive or negative consequences for the statewide electoral strength of African American voters. To the extent that voting patterns suggest that minority voters are in a better position to join forces with other segments of the population to elect minority preferred candidates, a decrease in a district's BVAP may have little or no effect on minority voting strength." 195 F. Supp. 2d 25, 76 (DC 2002).
86
See id., at 78 ("[T]he Voting Rights Act allows states to adopt plans that move minorities out of districts in which they formerly constituted a majority of the voting population, provided that racial divisions have healed to the point that numerical reductions will not necessarily translate into reductions in electoral power"); id., at 84 ("[T]he mere fact that BVAP decreases in certain districts is not enough to deny preclearance to a plan under Section 5").2
87
The District Court recognized that the key to understanding the impact of drops in a district's BVAP on the minority group's "effective exercise of the electoral franchise," Beer, 425 U. S., at 141, is the level of racial polarization. If racial elements consistently vote in separate blocs, decreasing the proportion of black voters will generally reduce the chance that the minority group's favored candidate will be elected; whereas in districts with low racial bloc voting or significant white crossover voting, a decrease in the black proportion may have no effect at all on the minority's opportunity to elect their candidate of choice. See, e. g., 195 F. Supp. 2d, at 84 ("[R]acial polarization is critically important because its presence or absence in the Senate Districts challenged by the United States goes a long way to determining whether or not the decreases in BVAP and African American voter registration in those districts are likely to produce retrogressive effects").
88
This indisputable recognition, that context determines the effect of decreasing minority numbers for purposes of the § 5 enquiry, points to the nub of this case, and the District Court's decision boils down to a judgment about what the evidence showed about that context. The District Court found that the United States had offered evidence of racial polarization in the contested districts,3 id., at 86, and it found that Georgia had failed to present anything relevant on that issue. Georgia, the District Court said, had "provided the court with no competent, comprehensive information regarding white crossover voting or levels of polarization in individual districts across the State." Id., at 88. In particular, the District Court found it "impossible to extrapolate" anything about the level of racial polarization from the statistical submissions of Georgia's lone expert witness. Id., at 85. And the panel majority took note that Georgia's expert "admitted on cross-examination" that his evidence simply did not address racial polarization: "the whole point of my analysis," the expert stated, "is not to look at polarization per se. The question is not whether or not blacks and whites in general vote for different candidates." Ibid. (internal quotation marks omitted).
89
Accordingly, the District Court explained that Georgia's expert: "made no attempt to address the central issue before the court: whether the State's proposal is retrogressive. He failed even to identify the decreases in BVAP that would occur under the proposed plan, and certainly did not identify corresponding reductions in the electability of African American candidates of choice. The paucity of information in [the expert's] report thus leaves us unable to use his analysis to assess the expected change in African American voting strength statewide that will be brought by the proposed Senate plan." Id., at 81.
B
90
How is it, then, that the majority of this Court speaks of "Georgia's evidence that the Senate plan as a whole is not retrogressive," against which "the United States did not introduce any evidence [in] rebut[tal]," ante, at 487? The answer is that the Court is not engaging in review for clear error. Instead, it is reweighing evidence de novo, discovering what it thinks the District Court overlooked, and drawing evidentiary conclusions the District Court supposedly did not see. The Court is mistaken on all points.
91
* Implicitly recognizing that evidence of voting behavior by majority voters is crucial to any showing of nonretrogression when minority numbers drop under a proposed plan, the Court tries to find evidence to fill the record's gap. It says, for example, that "Georgia introduced evidence showing that approximately one-third of white voters would support a black candidate in [the contested] districts." Ante, at 486. In support of this claim, however, the majority focuses on testimony offered by Georgia's expert relating to crossover voting in the pre-existing rather than proposed districts. 195 F. Supp. 2d, at 66. The District Court specifically noted that the expert did not calculate crossover voting under the proposed plan. Id., at 65, n. 31 ("The court also emphasizes that Epstein did not attempt to rely on the table's calculations to demonstrate voting patterns in the districts, and calculated crossover in the existing, and not the proposed, Senate districts"). Indeed, in relying on this evidence the majority attributes a significance to it that Georgia's own expert disclaimed, as the District Court pointed out. See id., at 85 ("[I]t is impossible to extrapolate these voting patterns from Epstein's database. As Epstein admitted on cross-examination: the whole point of my analysis is not to look at polarization per se. The question is not whether or not blacks and whites in general vote for different candidates" (internal quotation marks omitted)).
2
92
In another effort to revise the record, the Court faults the District Court, alleging that it "focused too narrowly on proposed Senate Districts 2, 12, and 26." Ante, at 485. In fact, however, it is Georgia that asked the District Court to consider only the contested districts, and the District Court explicitly refused to limit its review in any such fashion: "we reject the State's argument that this court's review is limited only to those districts challenged by the United States, and should not encompass the redistricting plans in their entirety. . . . [T]he court's review necessarily extends to the entire proposed plan." 195 F. Supp. 2d, at 73. The District Court explained that it "is vested with the final authority to approve or disapprove the proposed change as a whole." Ibid. "The question before us is whether the proposed Senate plan as a whole, has the `purpose or effect of denying or abridging the right to vote on account of race or color.'" Id., at 103 (Oberdorfer, J., concurring in part and dissenting in part) (quoting 42 U.S. C. § 1973c). Though the majority asserts that "[t]he District Court ignored the evidence of numerous other districts showing an increase in black voting age population," ante, at 486, the District Court, in fact, specifically considered the parties' dispute over the statewide impact of the change in black voting age population. See, e. g., 195 F. Supp. 2d, at 93 ("The number of Senate Districts with majorities of BVAP would, according to Georgia's calculations, increase from twelve to thirteen; according to the Attorney General's interpretation of the census data, the number would decrease from twelve to eleven").
3
93
In a further try to improve the record, the Court focuses on the testimony of certain lay witnesses, politicians presented by the State to support its claim that the Senate plan is not retrogressive. Georgia, indeed, relied heavily on the near unanimity of minority legislators' support for the plan. But the District Court did not overlook this evidence; it simply found it inadequate to carry the State's burden of showing nonretrogression. The District Court majority explained that the "legislators' support is, in the end, far more probative of a lack of retrogressive purpose than of an absence of retrogressive effect." Id., at 89 (emphasis in original). As against the politicians' testimony, the District Court had contrary "credible," id., at 88, evidence of retrogressive effect. This evidence was the testimony of the expert witness presented by the United States, which "suggests the existence of highly racially polarized voting in the proposed districts," ibid., evidence of retrogressive effect to which Georgia offered "no competent" response, ibid. The District Court was clearly within bounds in finding that (1) Georgia's proposed plan decreased BVAP in the relevant districts, (2) the United States offered evidence of significant racial polarization in those districts, and (3) Georgia offered no adequate response to this evidence.
94
The reasonableness of the District Court's treatment of the evidence is underscored in its concluding reflection that it was possible Georgia could have shown the plan to be nonretrogressive, but the evidence the State had actually offered simply failed to do that. "There are, without doubt, numerous other ways, given the limited evidence of racially polarized voting in State Senate and local elections, that Georgia could have met its burden of proof in this case. Yet, the court is limited to reviewing the evidence presented by the parties, and is compelled to hold that the State has not met its burden." Id., at 94. "[T]he lack of positive racial polarization data was the gap at the center of the State's case [and] the evidence presented by [the] estimable [legislators] does not come close to filling that void." Id., at 100.
95
As must be plain, in overturning the District Court's thoughtful consideration of the evidence before it, the majority of this Court is simply rejecting the District Court's evidentiary finding in favor of its own. It is reweighing testimony and making judgments about the competence, interest, and character of witnesses. The Court is not conducting clear error review.
4
96
Next, the Court attempts to fill the holes in the State's evidence on retrogression by drawing inferences favorable to the State from undisputed statistics. See ante, at 487-489. This exercise comes no closer to demonstrating clear error than the others considered so far.
97
In the first place, the District Court has already explained the futility of the Court's effort. Knowing whether the number of majority BVAP districts increases, decreases, or stays the same under a proposed plan does not alone allow any firm conclusion that minorities will have a better, or worse, or unvarying opportunity to elect their candidates of choice. Any such inference must depend not only on trends in BVAP levels, but on evidence of likely voter turnout among minority and majority groups, patterns of racial bloc voting, likelihood of white crossover voting, and so on.4 Indeed, the core holding of the Court today, with which I agree, that nonretrogression does not necessarily require maintenance of existing supermajority minority districts, turns on this very point; comparing the number of majority-minority districts under existing and proposed plans does not alone reliably indicate whether the new plan is retrogressive.
98
Lack of contextual evidence is not, however, the only flaw in the Court's numerical arguments. Thus, in its first example, ante, at 487, the Court points out that under the proposed plan the number of districts with majority BVAP increases by one over the existing plan,5 but the Court does not mention that the number of districts with BVAP levels over 55% decreases by four. See Record, Doc. No. 148, Pl. Exhs. 1D, 2C. Similarly, the Court points to an increase of two in districts with BVAP in the 30% to 50% range, along with a further increase of two in the 25% to 30% range. Ante, at 487. It fails to mention, however, that Georgia's own expert argued that 44.3% was the critical threshold for BVAP levels, 195 F. Supp. 2d, at 107, and the data on which the Court relies shows the number of districts with BVAP over 40% actually decreasing by one, see Record, Doc. No. 148, Pl. Exhs. 1D, 2C. My point is not that these figures conclusively demonstrate retrogression; I mean to say only that percentages tell us nothing in isolation, and that without contextual evidence the raw facts about population levels fail to get close to indicating that the State carried its burden to show no retrogression. They do not come close to showing clear error.
5
99
Nor could error, clear or otherwise, be shown by the Court's comparison of the proposed plan with the description of the State and its districts provided by the 1990 census. Ante, at 487-489. The 1990 census is irrelevant. We have the 2000 census, and precedent confirms in no uncertain terms that the issue for § 5 purposes is not whether Georgia's proposed plan would have had a retrogressive effect 13 years ago: the question is whether the proposed plan would be retrogressive now. See, e. g., Reno v. Bossier Parish School Bd., 528 U.S. 320, 334 (2000) (Under § 5 "the baseline is the status quo that is proposed to be changed"); Holder v. Hall, 512 U.S. 874, 883 (1994) (plurality opinion) (Under § 5, "[t]he baseline for comparison is present by definition; it is the existing status"); City of Lockhart v. United States, 460 U. S., at 132 ("The proper comparison is between the new system and the system actually in effect"); Cf. 28 CFR § 51.54(b)(2) (2002) (when determining if a change is retrogressive under § 5 "[t]he Attorney General will make the comparison based on the conditions existing at the time of the submission"). The Court's assumption that a proper § 5 analysis may proceed on the basis of obsolete data from a superseded census is thus as puzzling as it is unprecedented. It is also an invitation to perverse results, for if a State could carry its burden under § 5 merely by showing no retrogression from the state of affairs 13 years ago, it could demand preclearance for a plan flatly diminishing minority voting strength under § 5.6
6
100
The Court's final effort to demonstrate that Georgia's plan is nonretrogressive focuses on statistics about Georgia Democrats. Ante, at 489. The Court explains that almost all the districts in the proposed plan with a BVAP above 20% have a likely overall Democratic performance above 50%, and from this the Court concludes that "[t]hese statistics make it more likely as a matter of fact that black voters will constitute an effective voting bloc." Ibid. But this is not so. The degree to which the statistics could support any judgment about the effect of black voting in State Senate elections is doubtful, and even on the Court's assumptions the statistics show no clear error by the District Court.
101
As for doubt about what the numbers have to do with State Senate elections, it is enough to know that the majority's figures are taken from a table describing Democratic voting in statewide, not local, elections. The Court offers no basis for assuming that voting for Democratic candidates in statewide elections correlates with voting behavior in local elections,7 and in fact, the record points to different, not identical, voting patterns. The District Court specifically noted that the United States's expert testified that "African American candidates consistently received less crossover voting in local election[s] than in statewide elections," 195 F. Supp. 2d, at 71, and the court concluded that there is "compelling evidence that racial voting patterns in State Senate races can be expected to differ from racial voting patterns in statewide races," id., at 85-86.
102
But even if we assume the data on Democratic voting statewide can tell us something useful about Democratic voting in State Senate districts, the Court's argument does not hold up. It proceeds from the faulty premise that even with a low BVAP, if enough of the district is Democratic, the minority Democrats will necessarily have an effect on which candidates are elected. But if the proportion of nonminority Democrats is high enough, the minority group may well have no impact whatever on which Democratic candidate is selected to run and ultimately elected. In districts, say, with 20% minority voters (all of them Democrats) and 51% nonminority Democrats, the Democratic candidate has no obvious need to take the interests of the minority group into account; if everybody votes (or the proportion of stay-at-homes is constant throughout the electorate) the Democrat can win the general election without minority support. Even in a situation where a Democratic candidate needs a substantial fraction of minority voters to win (say the population is 25% minority and 30% nonminority Democrats), the Democratic candidate may still be able to ignore minority interests if there is such ideological polarization as between the major parties that the Republican candidate is entirely unresponsive to minority interests. In that situation, a minority bloc would presumably still prefer the Democrat, who would not need to adjust any political positions to get the minority vote.
103
All of this reasoning, of course, carries a whiff of the lamp. I do not know how Georgia's voters will actually behave if the percentage of something is x, or maybe y, any more than the Court does. We are arguing about numerical abstractions, and my sole point is that the Court's abstract arguments do not hold up. Much less do they prove the District Court wrong.
IV
104
Section 5, after all, was not enacted to address abstractions. It was "to shift the advantage of time and inertia from the perpetrators of the evil to its victim," Beer, 425 U. S., at 140 (internal quotation marks omitted) (quoting H. R. Rep. No. 94-196, pp. 57-58 (1970)), and the State of Georgia was made subject to the requirement of preclearance because Congress "had reason to suppose" it might "try . . . to evade the remedies for voting discrimination" and thus justifies § 5's "uncommon exercise of congressional power." South Carolina v. Katzenbach, 383 U. S., at 334-335. Section 5 can only be addressed, and the burden to prove no retrogression can only be carried, with evidence of how particular populations of voters will probably act in the circumstances in which they live. The State has the burden to convince on the basis of such evidence. The District Court considered such evidence: it received testimony, decided what it was worth, and concluded as the trier of fact that the State had failed to carry its burden. There was no error, and I respectfully dissent.
Notes:
1
The District Court correctly recognized that the State bears the burden of proof in establishing that its proposed redistricting plan satisfied the standards of § 5. See,e. g., 195 F. Supp. 2d 25, 86 (DC 2002) ("We look to the State to explain why retrogression is not present"); see also Reno v. Bossier Parish School Bd., 520 U.S. 471, 478 (1997) (covered jurisdiction "bears the burden of proving that the change does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color" (internal quotation marks omitted)); id., at 480 (Section 5 "imposes upon a covered jurisdiction the difficult burden of proving the absence of discriminatory purpose and effect");Reno v. Bossier Parish School Bd., 528 U.S. 320, 332 (2000) ("In the specific context of § 5 . . . the covered jurisdiction has the burden of persuasion"); cf. Beer v. United States, 425 U.S. 130, 140 (1976) (Congress in passing § 5 sought to "freez[e] election procedures in the covered areas unless the changes can be shown to be nondiscriminatory" (internal quotation marks omitted)).
2
Indeed, the other plans approved by the District Court, Georgia's State House plan, 195 F. Supp. 2d, at 95, congressional plan,ibid., and the interim plan approved for the State Senate, 204 F. Supp. 2d 4, 7 (DC 2002), all included decreases in BVAP in particular districts.
3
The majority cites the District Court's comment that "`the United States' evidence was extremely limited in scope—focusing only on three contested districts in the State Senate plan.'"Ante, at 474 (quoting 195 F. Supp. 2d, at 37). The District Court correctly did not require the United States to prove that the plan was retrogressive. As the District Court explained: "[u]ltimately, the burden of proof in this matter lies with the State. We look to the State to explain why retrogression is not present, and to prove the absence of racially polarized voting that might diminish African American voting strength in light of several districts' decreased BVAPs." Id., at 86.
4
The fact that the Court premises its analysis on BVAP alone is ironic given that the Court, incorrectly, chastises the District Court for committing the very error the Court now engages in, "fail[ing] to consider all the relevant factors."Ante, at 485.
5
Though the Court does not acknowledge it in its discussion of why "Georgia likely met its burden,"ante, at 487, even this claim was disputed. As the District Court explained: "[t]he number of Senate Districts with majorities of BVAP would, according to Georgia's calculations, increase from twelve to thirteen; according to the Attorney General's interpretation of the census data, the number would decrease from twelve to eleven." 195 F. Supp. 2d, at 93.
6
For example, if a covered jurisdiction had two majority-minority districts in 1990, but rapidly changing demography had produced two more during the ensuing decade, a new redistricting plan, setting the number of majority-minority districts at three would conclusively rule out retrogression on the Court's calculus. This would be the case even when voting behavior showed that nothing short of four majority-minority districts would preserve the status quo as of 2000
7
Even if the majority wanted to rely on these figures to make a claim about Democratic voting in statewide elections, the predictors' significance is utterly unclear. The majority pulls its figures from an exhibit titled, "Political Data Report," and a column labeled, "%OVER DEMVOTES," Pl. Exh. 2D. Seeante, at 489. The document provides no information regarding whether the numbers in the column reflect an average of past performance, a prediction for future performance, or something else altogether | 0 * I agree with the Court that reducing the number of majority-minority districts within a State would not necessarily amount to retrogression barring preclearance under 5 of the Voting Rights Act of 1965. See ante, -482. The prudential objective of 5 is hardly betrayed if a State can show that a new districting shifts from supermajority districts, in which minorities can elect their candidates of choice by their own voting power, to coalition districts, in which minorities are in fact shown to have a similar opportunity when joined by predictably supportive nonminority voters. Cf. (explaining in the context of 2 that although "society's racial and ethnic cleavages sometimes necessitate majority-minority districts to ensure equal political and electoral opportunity, that should not obscure the fact that there are communities in which minority citizens are able to form coalitions with voters from other racial and ethnic groups, having no need to be a majority within a single district in order to elect candidates of their choice"). 1 Before a State shifts from majority-minority to coalition districts, however, the State bears the burden of proving that nonminority voters will reliably vote along with the minority. See, e. It must show not merely that minority voters in new districts may have some influence, but that minority voters will have effective influence translatable into probable election results comparable to what they enjoyed under the existing district scheme. And to demonstrate this, a State must do more than produce reports of minority voting age percentages; it must show that the probable voting behavior of nonminority voters will make coalitions with minorities a real prospect. See, e. Pildes, Is Voting-Rights Law Now at War With Itself? Social Science and Voting Rights in the 2000s, 80 N. C. L. Rev. 151, 1539 If the State's evidence fails to convince a factfinder that high racial polarization in voting is unlikely, or that high white crossover voting is likely, or that other political and demographic facts point to probable minority effectiveness, a reduction in supermajority districts must be treated as potentially and fatally retrogressive, the burden of persuasion always being on the State. 2 The District Court majority perfectly well understood all this and committed no error. Error enters this case here in this Court, whose majority unmoors 5 from any practical and administrable conception of minority influence that would rule out retrogression in a transition from majority-minority districts, and mistakes the significance of the evidence supporting the District Court's decision. II 3 The Court goes beyond recognizing the possibility of coalition districts as nonretrogressive alternatives to those with majorities of minority voters when it redefines effective voting power in 5 analysis without the anchoring reference to electing a candidate of choice. It does this by alternatively suggesting that a potentially retrogressive redistricting could satisfy 5 if a sufficient number of so-called "influence districts," in addition to "coalitio[n] districts," were created, ante, at 483, 484, or if the new provided minority groups with an opportunity to elect a particularly powerful candidate, ante, at 483-484. On either alternative, the 5 requirement that voting changes be nonretrogressive is substantially diminished and left practically unadministrable. 4 * The Court holds that a State can carry its burden to show a nonretrogressive degree of minority "influence" by demonstrating that "`candidates elected without decisive minority support would be willing to take the minority's interests into account.'" Ante, at 482 ). But this cannot be right. 5 The history of 5 demonstrates that it addresses changes in state law intended to perpetuate the exclusion of minority voters from the exercise of political power. When this Court held that a State must show that any change in voting procedure is free of retrogression it meant that changes must not leave minority voters with less chance to be effective in electing preferred candidates than they were before the change. "[T]he purpose of 5 has always been to insure that no voting-procedure changes would be made that would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise." ; see, e. at - In addressing the burden to show no retrogression, therefore, "influence" must mean an opportunity to exercise power effectively. The Court, however, says that influence may be adequate to avoid retrogression from majority-minority districts when it consists not of decisive minority voting power but of sentiment on the part of politicians: influence may be sufficient when it reflects a willingness on the part of politicians to consider the interests of minority voters, even when they do not need the minority votes to be elected. The Court holds, in other words, that there would be no retrogression when the power of a voting majority of minority voters is eliminated, so long as elected politicians can be expected to give some consideration to minority interests. The power to elect a candidate of choice has been forgotten; voting power has been forgotten. It is very hard to see anything left of the standard of nonretrogression, and it is no surprise that the Court's cited precedential support for this reconception, see ante, at 482, consists of a footnote from a dissenting opinion in and footnote dictum in a case from the Western District of Louisiana. 8 Indeed, to see the trouble ahead, one need only ask how on the Court's new understanding, state legislators or federal preclearance reviewers under 5 are supposed to identify or measure the degree of influence necessary to avoid the retrogression the Court nominally retains as the 5 touchstone. Is the test purely ad hominem, looking merely to the apparent sentiments of incumbents who might run in the new districts? Would it be enough for a State to show that an incumbent had previously promised to consider minority interests before voting on legislative measures? Whatever one looks to, however, how does one put a value on influence that falls short of decisive influence through coalition? Nondecisive influence is worth less than majority-minority control, but how much less? Would two influence districts offset the loss of one majority-minority district? Would it take three? Or four? The Court gives no guidance for measuring influence that falls short of the voting strength of a coalition member, let alone a majority of minority voters. Nor do I see how the Court could possibly give any such guidance. The Court's "influence" is simply not functional in the political and judicial worlds. B 9 Identical problems of comparability and administrability count at least as much against the Court's further gloss on nonretrogression, in its novel holding that a State may trade off minority voters' ability to elect a candidate of their choice against their ability to exert some undefined degree of influence over a candidate likely to occupy a position of official legislative power. See ante, at 483-484. The Court implies that one majority-minority district in which minority voters could elect a legislative leader could replace a larger number of majority-minority districts with ordinary candidates, without retrogression of overall minority voting strength. Under this approach to 5, a State may value minority votes in a district in which a potential committee chairman might be elected differently from minority votes in a district with ordinary candidates. 80 It is impossible to believe that Congress could ever have imagined 5 preclearance actually turning on any such distinctions. In any event, if the Court is going to allow a State to weigh minority votes by the ambitiousness of candidates the votes might be cast for, it is hard to see any stopping point. I suppose the Court would not go so far as to give extra points to an incumbent with the charisma to attract a legislative following, but would it value all committee chairmen equally? (The committee chairmen certainly would not.) And what about a legislator with a network of influence that has made him a proven dealmaker? Thus, again, the problem of measurement: is a shift from 10 majority-minority districts to 8 offset by a good chance that 1 of the 8 may elect a new Speaker of the House? 81 I do not fault the Court for having no answers to these questions, for there are no answers of any use under 5. The fault is more fundamental, and the very fact that the Court's interpretation of nonretrogression under 5 invites unanswerable questions points to the error of a 5 preclearance regime that defies reviewable administration. We are left with little hope of determining practically whether a districting shift to one party's overall political advantage can be expected to offset a loss of majority-minority voting power in particular districts; there will simply be greater opportunity to reduce minority voting strength in the guise of obtaining party advantage. 82 One is left to ask who will suffer most from the Court's new and unquantifiable standard. If it should turn out that an actual, serious burden of persuasion remains on the that rely on the new theory of influence should be guaranteed losers: nonretrogression cannot be demonstrated by districts with minority influence too amorphous for objective comparison. But that outcome is unlikely, and if in subsequent cases the Court allows the State's burden to be satisfied on the pretense that unquantifiable influence can be equated with majority-minority power, 5 will simply drop out as a safeguard against the "unremitting and ingenious defiance of the Constitution" that required the procedure of preclearance in the first place. South III 83 The District Court never reached the question the Court addresses, of what kind of influence districts (coalition or not) might demonstrate that a decrease in majority-minority districts was not retrogressive. It did not reach this question because it found that the State had not satisfied its burden of persuasion on an issue that should be crucial on any administrable theory:1 the State had not shown the possibility of actual coalitions in the affected districts that would allow any retreat from majority-minority districts without a retrogressive effect. This central evidentiary finding is invulnerable under the correct standard of review. 84 This Court's review of the District Court's factual findings is for clear error. See, e. ; Pleasant ; ; City of We have no business disturbing the District Court's ruling "simply because we would have decided the case differently," but only if based "on the entire evidence, [we are] left with the definite and firm conviction that a mistake has been committed." It is not, then, up to us to "decide whether Georgia's State Senate redistricting is retrogressive as compared to its previous, benchmark districting" Ante, at 466. Our sole responsibility is to see whether the District Court committed clear error in refusing to preclear the It did not. 85 * The District Court began with the acknowledgment (to which we would all assent) that the simple fact of a decrease in black voting age population (BVAP) in some districts is not alone dispositive about whether a proposed is retrogressive: "`Unpacking' African American districts may have positive or negative consequences for the statewide electoral strength of African American voters. To the extent that voting patterns suggest that minority voters are in a better position to join forces with other segments of the population to elect minority preferred candidates, a decrease in a district's BVAP may have little or no effect on minority voting strength." See ("[T]he Voting Rights Act allows states to adopt s that move minorities out of districts in which they formerly constituted a majority of the voting population, provided that racial divisions have healed to the point that numerical reductions will not necessarily translate into reductions in electoral power");2 8 The District Court recognized that the key to understanding the impact of drops in a district's BVAP on the minority group's "effective exercise of the electoral franchise," 425 U. S., at is the level of racial polarization. If racial elements consistently vote in separate blocs, decreasing the proportion of black voters will generally reduce the chance that the minority group's favored candidate will be elected; whereas in districts with low racial bloc voting or significant white crossover voting, a decrease in the black proportion may have no effect at all on the minority's opportunity to elect their candidate of choice. See, e. 195 F. Supp. 2d, ("[R]acial polarization is critically important because its presence or absence in the Senate Districts challenged by the United goes a long way to determining whether or not the decreases in BVAP and African American voter registration in those districts are likely to produce retrogressive effects"). 88 This indisputable recognition, that context determines the effect of decreasing minority numbers for purposes of the 5 enquiry, points to the nub of this case, and the District Court's decision boils down to a judgment about what the evidence showed about that context. The District Court found that the United had offered evidence of racial polarization in the contested districts,3 and it found that Georgia had failed to present anything relevant on that issue. Georgia, the District Court said, had "provided the court with no competent, comprehensive information regarding white crossover voting or of polarization in individual districts across the State." In particular, the District Court found it "impossible to extrapolate" anything about the level of racial polarization from the statistical submissions of Georgia's lone expert witness. And the panel majority took note that Georgia's expert "admitted on cross-examination" that his evidence simply did not address racial polarization: "the whole point of my analysis," the expert stated, "is not to look at polarization per se. The question is not whether or not blacks and whites in general vote for different candidates." 89 Accordingly, the District Court explained that Georgia's expert: "made no attempt to address the central issue before the court: whether the State's proposal is retrogressive. He failed even to identify the decreases in BVAP that would occur under the proposed and certainly did not identify corresponding reductions in the electability of African American candidates of choice. The paucity of information in [the expert's] report thus leaves us unable to use his analysis to assess the expected change in African American voting strength statewide that will be brought by the proposed Senate" B 90 How is it, then, that the majority of this Court speaks of "Georgia's evidence that the Senate as a whole is not retrogressive," against which "the United did not introduce any evidence [in] rebut[tal]," ante, at 48? The answer is that the Court is not engaging in review for clear error. Instead, it is reweighing evidence de novo, discovering what it thinks the District Court overlooked, and drawing evidentiary conclusions the District Court supposedly did not see. The Court is mistaken on all points. 91 * Implicitly recognizing that evidence of voting behavior by majority voters is crucial to any showing of nonretrogression when minority numbers drop under a proposed the Court tries to find evidence to fill the record's gap. It says, for example, that "Georgia introduced evidence showing that approximately one-third of white voters would support a black candidate in [the contested] " Ante, at 4. In support of this claim, however, the majority focuses on testimony offered by Georgia's expert relating to crossover voting in the pre-existing rather than proposed The District Court specifically noted that the expert did not calculate crossover voting under the proposed Indeed, in relying on this evidence the majority attributes a significance to it that Georgia's own expert disclaimed, as the District Court pointed out. See ("[I]t is impossible to extrapolate these voting patterns from Epstein's database. As Epstein admitted on cross-examination: the whole point of my analysis is not to look at polarization per se. The question is not whether or not blacks and whites in general vote for different candidates" ). 2 92 In another effort to revise the record, the Court faults the District Court, alleging that it "focused too narrowly on proposed Senate Districts 2, 12, and 26." Ante, at 485. In fact, however, it is Georgia that asked the District Court to consider only the contested districts, and the District Court explicitly refused to limit its review in any such fashion: "we reject the State's argument that this court's review is limited only to those districts challenged by the United and should not encompass the redistricting s in their entirety. [T]he court's review necessarily extends to the entire proposed" The District Court explained that it "is vested with the final authority to approve or disapprove the proposed change as a whole." "The question before us is whether the proposed Senate as a whole, has the `purpose or effect of denying or abridging the right to vote on account of race or color.'" ( 42 U.S. C. 193c). Though the majority asserts that "[t]he District Court ignored the evidence of numerous other districts showing an increase in black voting age population," ante, at 4, the District Court, in fact, specifically considered the parties' dispute over the statewide impact of the change in black voting age population. See, e. 3 93 In a further try to improve the record, the Court focuses on the testimony of certain lay witnesses, politicians presented by the State to support its claim that the Senate is not retrogressive. Georgia, indeed, relied heavily on the near unanimity of minority legislators' support for the But the District Court did not overlook this evidence; it simply found it inadequate to carry the State's burden of showing nonretrogression. The District Court majority explained that the "legislators' support is, in the end, far more probative of a lack of retrogressive purpose than of an absence of retrogressive effect." As against the politicians' testimony, the District Court had contrary "credible," evidence of retrogressive effect. This evidence was the testimony of the expert witness presented by the United which "suggests the existence of highly racially polarized voting in the proposed districts," ib evidence of retrogressive effect to which Georgia offered "no competent" response, The District Court was clearly within bounds in finding that (1) Georgia's proposed decreased BVAP in the relevant districts, (2) the United offered evidence of significant racial polarization in those districts, and (3) Georgia offered no adequate response to this evidence. 94 The reasonableness of the District Court's treatment of the evidence is underscored in its concluding reflection that it was possible Georgia could have shown the to be nonretrogressive, but the evidence the State had actually offered simply failed to do that. "There are, without doubt, numerous other ways, given the limited evidence of racially polarized voting in State Senate and local elections, that Georgia could have met its burden of proof in this case. Yet, the court is limited to reviewing the evidence presented by the parties, and is compelled to hold that the State has not met its burden." "[T]he lack of positive racial polarization data was the gap at the center of the State's case [and] the evidence presented by [the] estimable [legislators] does not come close to filling that void." at 95 As must be plain, in overturning the District Court's thoughtful consideration of the evidence before it, the majority of this Court is simply rejecting the District Court's evidentiary finding in favor of its own. It is reweighing testimony and making judgments about the competence, interest, and character of witnesses. The Court is not conducting clear error review. 4 96 Next, the Court attempts to fill the holes in the State's evidence on retrogression by drawing inferences favorable to the State from undisputed statistics. See ante, at 48-489. This exercise comes no closer to demonstrating clear error than the others considered so far. 9 In the first place, the District Court has already explained the futility of the Court's effort. Knowing whether the number of majority BVAP districts increases, decreases, or stays the same under a proposed does not alone allow any firm conclusion that minorities will have a better, or worse, or unvarying opportunity to elect their candidates of choice. Any such inference must depend not only on trends in BVAP but on evidence of likely voter turnout among minority and majority groups, patterns of racial bloc voting, likelihood of white crossover voting, and so on.4 Indeed, the core holding of the Court today, with which I agree, that nonretrogression does not necessarily require maintenance of existing supermajority minority districts, turns on this very point; comparing the number of majority-minority districts under existing and proposed s does not alone reliably indicate whether the new is retrogressive. 98 Lack of contextual evidence is not, however, the only flaw in the Court's numerical arguments. Thus, in its first example, ante, at 48, the Court points out that under the proposed the number of districts with majority BVAP increases by one over the existing5 but the Court does not mention that the number of districts with BVAP over 55% decreases by four. See Record, Doc. No. 148, Pl. Exhs. 1D, 2C. Similarly, the Court points to an increase of two in districts with BVAP in the 30% to 50% range, along with a further increase of two in the 25% to 30% range. Ante, at 48. It fails to mention, however, that Georgia's own expert argued that 44.3% was the critical threshold for BVAP and the data on which the Court relies shows the number of districts with BVAP over 40% actually decreasing by one, see Record, Doc. No. 148, Pl. Exhs. 1D, 2C. My point is not that these figures conclusively demonstrate retrogression; I mean to say only that percentages tell us nothing in isolation, and that without contextual evidence the raw facts about population fail to get close to indicating that the State carried its burden to show no retrogression. They do not come close to showing clear error. 5 99 Nor could error, clear or otherwise, be shown by the Court's comparison of the proposed with the description of the State and its districts provided by the 1990 census. Ante, at 48-489. The 1990 census is irrelevant. We have the 2000 census, and precedent confirms in no uncertain terms that the issue for 5 purposes is not whether Georgia's proposed would have had a retrogressive effect 13 years ago: the question is whether the proposed would be retrogressive now. See, e. (Under 5 "the baseline is the status quo that is proposed to be changed"); (Under 5, "[t]he baseline for comparison is present by definition; it is the existing status"); City of ; Cf. 28 CFR 51.54(b)(2) (when determining if a change is retrogressive under 5 "[t]he Attorney General will make the comparison based on the conditions existing at the time of the submission"). The Court's assumption that a proper 5 analysis may proceed on the basis of obsolete data from a superseded census is thus as puzzling as it is unprecedented. It is also an invitation to perverse results, for if a State could carry its burden under 5 merely by showing no retrogression from the state of affairs 13 years ago, it could demand preclearance for a flatly diminishing minority voting strength under 5.6 6 The Court's final effort to demonstrate that Georgia's is nonretrogressive focuses on statistics about Georgia Democrats. Ante, at 489. The Court explains that almost all the districts in the proposed with a BVAP above 20% have a likely overall Democratic performance above 50%, and from this the Court concludes that "[t]hese statistics make it more likely as a matter of fact that black voters will constitute an effective voting bloc." But this is not so. The degree to which the statistics could support any judgment about the effect of black voting in State Senate elections is doubtful, and even on the Court's assumptions the statistics show no clear error by the District Court. 101 As for doubt about what the numbers have to do with State Senate elections, it is enough to know that the majority's figures are taken from a table describing Democratic voting in statewide, not local, elections. The Court offers no basis for assuming that voting for Democratic candidates in statewide elections correlates with voting behavior in local elections, and in fact, the record points to different, not identical, voting patterns. The District Court specifically noted that the United 's expert testified that "African American candidates consistently received less crossover voting in local election[s] than in statewide elections," and the court concluded that there is "compelling evidence that racial voting patterns in State Senate races can be expected to differ from racial voting patterns in statewide races," -. 102 But even if we assume the data on Democratic voting statewide can tell us something useful about Democratic voting in State Senate districts, the Court's argument does not hold up. It proceeds from the faulty premise that even with a low BVAP, if enough of the district is Democratic, the minority Democrats will necessarily have an effect on which candidates are elected. But if the proportion of nonminority Democrats is high enough, the minority group may well have no impact whatever on which Democratic candidate is selected to run and ultimately elected. In districts, say, with 20% minority voters (all of them Democrats) and 51% nonminority Democrats, the Democratic candidate has no obvious need to take the interests of the minority group into account; if everybody votes (or the proportion of stay-at-homes is constant throughout the electorate) the Democrat can win the general election without minority support. Even in a situation where a Democratic candidate needs a substantial fraction of minority voters to win (say the population is 25% minority and 30% nonminority Democrats), the Democratic candidate may still be able to ignore minority interests if there is such ideological polarization as between the major parties that the Republican candidate is entirely unresponsive to minority interests. In that situation, a minority bloc would presumably still prefer the Democrat, who would not need to adjust any political positions to get the minority vote. 103 All of this reasoning, of course, carries a whiff of the lamp. I do not know how Georgia's voters will actually behave if the percentage of something is x, or maybe y, any more than the Court does. We are arguing about numerical abstractions, and my sole point is that the Court's abstract arguments do not hold up. Much less do they prove the District Court wron IV 104 Section 5, after all, was not enacted to address abstractions. It was "to shift the advantage of time and inertia from the perpetrators of the evil to its victim," ( H. R. Rep. No. 94-196, pp. 5-58 (190)), and the State of Georgia was made subject to the requirement of preclearance because Congress "had reason to suppose" it might "try to evade the remedies for voting discrimination" and thus justifies 5's "uncommon exercise of congressional power." South 383 U. S., at -335. Section 5 can only be addressed, and the burden to prove no retrogression can only be carried, with evidence of how particular populations of voters will probably act in the circumstances in which they live. The State has the burden to convince on the basis of such evidence. The District Court considered such evidence: it received testimony, decided what it was worth, and concluded as the trier of fact that the State had failed to carry its burden. There was no error, and I respectfully dissent. Notes: 1 The District Court correctly recognized that the State bears the burden of proof in establishing that its proposed redistricting satisfied the standards of 5. See,e. ; see also (covered jurisdiction "bears the burden of proving that the change does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color" ); ;, ("In the specific context of 5 the covered jurisdiction has the burden of persuasion"); cf. (Congress in passing 5 sought to "freez[e] election procedures in the covered areas unless the changes can be shown to be nondiscriminatory" ). 2 Indeed, the other s approved by the District Court, Georgia's State House congressionalib and the interim approved for the State Senate, all included decreases in BVAP in particular 3 The majority cites the District Court's comment that "`the United ' evidence was extremely limited in scope—focusing only on three contested districts in the State Senate'"Ante, at 44 ( 195 F. Supp. 2d, at 3). The District Court correctly did not require the United to prove that the was retrogressive. As the District Court explained: "[u]ltimately, the burden of proof in this matter lies with the State. We look to the State to explain why retrogression is not present, and to prove the absence of racially polarized voting that might diminish African American voting strength in light of several districts' decreased BVAPs." 4 The fact that the Court premises its analysis on BVAP alone is ironic given that the Court, incorrectly, chastises the District Court for committing the very error the Court now engages in, "fail[ing] to consider all the relevant factors."Ante, at 485. 5 Though the Court does not acknowledge it in its discussion of why "Georgia likely met its burden,"ante, at 48, even this claim was disputed. As the District Court explained: "[t]he number of Senate Districts with majorities of BVAP would, according to Georgia's calculations, increase from twelve to thirteen; according to the Attorney General's interpretation of the census data, the number would decrease from twelve to eleven." 6 For example, if a covered jurisdiction had two majority-minority districts in 1990, but rapidly changing demography had produced two more during the ensuing decade, a new redistricting setting the number of majority-minority districts at three would conclusively rule out retrogression on the Court's calculus. This would be the case even when voting behavior showed that nothing short of four majority-minority districts would preserve the status quo as of 2000 Even if the majority wanted to rely on these figures to make a claim about Democratic voting in statewide elections, the predictors' significance is utterly unclear. The majority pulls its figures from an exhibit titled, "Political Data Report," and a column labeled, "%OVER DEMVOTES," Pl. Exh. 2D. Seeante, at 489. The document provides no information regarding whether the numbers in the column reflect an average of past performance, a prediction for future performance, or something else altogether |
Justice Stewart | majority | false | Hudgens v. NLRB | 1976-03-03T00:00:00 | null | https://www.courtlistener.com/opinion/109390/hudgens-v-nlrb/ | https://www.courtlistener.com/api/rest/v3/clusters/109390/ | 1,976 | 1975-044 | 1 | 6 | 2 | A group of labor union members who engaged in peaceful primary picketing within the confines of a privately owned shopping center were threatened by an agent of the owner with arrest for criminal trespass if they did not depart. The question presented is whether this threat violated the National Labor Relations Act, 49 Stat. 449, as amended, 61 Stat. 136, 29 U.S. C. § 151 et seq. The National Labor Relations Board concluded that it did, 205 N. L. R. B. 628, and the Court of Appeals for the Fifth Circuit agreed. 501 F.2d 161. We granted certiorari because of the seemingly important questions of federal law presented. 420 U.S. 971.
*509 I
The petitioner, Scott Hudgens, is the owner of the North DeKalb Shopping Center, located in suburban Atlanta, Ga. The center consists of a single large building with an enclosed mall. Surrounding the building is a parking area which can accommodate 2,640 automobiles. The shopping center houses 60 retail stores leased to various businesses. One of the lessees is the Butler Shoe Co. Most of the stores, including Butler's, can be entered only from the interior mall.
In January 1971, warehouse employees of the Butler Shoe Co. went on strike to protest the company's failure to agree to demands made by their union in contract negotiations.[1] The strikers decided to picket not only Butler's warehouse but its nine retail stores in the Atlanta area as well, including the store in the North DeKalb Shopping Center. On January 22, 1971, four of the striking warehouse employees entered the center's enclosed mall carrying placards which read: "Butler Shoe Warehouse on Strike, AFL-CIO, Local 315." The general manager of the shopping center informed the employees that they could not picket within the mall or on the parking lot and threatened them with arrest if they did not leave. The employees departed but returned a short time later and began picketing in an area of the mall immediately adjacent to the entrances of the Butler store. After the picketing had continued for approximately 30 minutes, the shopping center manager again informed the pickets that if they did not leave they would be arrested for trespassing. The pickets departed.
The union subsequently filed with the Board an unfair labor practice charge against Hudgens, alleging interference with rights protected by § 7 of the Act, 29 *510 U. S. C. § 157.[2] Relying on this Court's decision in Food Employees v. Logan Valley Plaza, 391 U.S. 308, the Board entered a cease-and-desist order against Hudgens, reasoning that because the warehouse employees enjoyed a First Amendment right to picket on the shopping center property, the owner's threat of arrest violated § 8 (a) (1) of the Act, 29 U.S. C. § 158 (a) (1).[3] Hudgens filed a petition for review in the Court of Appeals for the Fifth Circuit. Soon thereafter this Court decided Lloyd Corp. v. Tanner, 407 U.S. 551, and Central Hardware Co. v. NLRB, 407 U.S. 539, and the Court of Appeals remanded the case to the Board for reconsideration in light of those two decisions.
The Board, in turn, remanded to an Administrative Law Judge, who made findings of fact, recommendations, and conclusions to the effect that Hudgens had committed an unfair labor practice by excluding the pickets. *511 This result was ostensibly reached under the statutory criteria set forth in NLRB v. Babcock & Wilcox Co., 351 U.S. 105, a case which held that union organizers who seek to solicit for union membership may intrude on an employer's private property if no alternative means exist for communicating with the employees. But the Administrative Law Judge's opinion also relied on this Court's constitutional decision in Logan Valley for a "realistic view of the facts." The Board agreed with the findings and recommendations of the Administrative Law Judge, but departed somewhat from his reasoning. It concluded that the pickets were within the scope of Hudgens' invitation to members of the public to do business at the shopping center, and that it was, therefore, immaterial whether or not there existed an alternative means of communicating with the customers and employees of the Butler store.[4]
Hudgens again petitioned for review in the Court of Appeals for the Fifth Circuit, and there the Board changed its tack and urged that the case was controlled not by Babcock & Wilcox, but by Republic Aviation Corp. v. NLRB, 324 U.S. 793, a case which held that an employer commits an unfair labor practice if he enforces a no-solicitation rule against employees on his premises who are also union organizers, unless he can prove that the rule is necessitated by special circumstances. The Court of Appeals enforced the Board's cease-and-desist order but on the basis of yet another theory. While acknowledging that the source of the pickets' rights was § 7 of the Act, the Court of Appeals held that the competing constitutional and property right considerations discussed in Lloyd Corp. v. Tanner, supra, "burde[n] the General Counsel with the duty to *512 prove that other locations less intrusive upon Hudgens' property rights than picketing inside the mall were either unavailable or ineffective," 501 F.2d, at 169, and that the Board's General Counsel had met that burden in this case.
In this Court the petitioner Hudgens continues to urge that Babcock & Wilcox Co. is the controlling precedent, and that under the criteria of that case the judgment of the Court of Appeals should be reversed. The respondent union agrees that a statutory standard governs, but insists that, since the § 7 activity here was not organizational as in Babcock but picketing in support of a lawful economic strike, an appropriate accommodation of the competing interests must lead to an affirmance of the Court of Appeals' judgment. The respondent Board now contends that the conflict between employee picketing rights and employer property rights in a case like this must be measured in accord with the commands of the First Amendment, pursuant to the Board's asserted understanding of Lloyd Corp. v. Tanner, supra, and that the judgment of the Court of Appeals should be affirmed on the basis of that standard.
II
As the above recital discloses, the history of this litigation has been a history of shifting positions on the part of the litigants, the Board, and the Court of Appeals. It has been a history, in short, of considerable confusion, engendered at least in part by decisions of this Court that intervened during the course of the litigation. In the present posture of the case the most basic question is whether the respective rights and liabilities of the parties are to be decided under the criteria of the National Labor Relations Act alone, under a First Amendment standard, or under some combination of the two. It is to that question, accordingly, that we now turn.
*513 It is, of course, a commonplace that the constitutional guarantee of free speech is a guarantee only against abridgment by government, federal or state. See Columbia Broadcasting System, Inc. v. Democratic National Comm., 412 U.S. 94. Thus, while statutory or common law may in some situations extend protection or provide redress against a private corporation or person who seeks to abridge the free expression of others, no such protection or redress is provided by the Constitution itself.
This elementary proposition is little more than a truism. But even truisms are not always unexceptionably true, and an exception to this one was recognized almost 30 years ago in Marsh v. Alabama, 326 U.S. 501. In Marsh, a Jehovah's Witness who had distributed literature without a license on a sidewalk in Chickasaw, Ala., was convicted of criminal trespass. Chickasaw was a so-called company town, wholly owned by the Gulf Shipbuilding Corp. It was described in the Court's opinion as follows:
"Except for [ownership by a private corporation] it has all the characteristics of any other American town. The property consists of residential buildings, streets, a system of sewers, a sewage disposal plant and a `business block' on which business places are situated. A deputy of the Mobile County Sheriff, paid by the company, serves as the town's policeman. Merchants and service establishments have rented the stores and business places on the business block and the United States uses one of the places as a post office from which six carriers deliver mail to the people of Chickasaw and the adjacent area. The town and the surrounding neighborhood, which can not be distinguished from the Gulf property by anyone not familiar with the property lines, are thickly *514 settled, and according to all indications the residents use the business block as their regular shopping center. To do so, they now, as they have for many years, make use of a company-owned paved street and sidewalk located alongside the store fronts in order to enter and leave the stores and the post office. Intersecting company-owned roads at each end of the business block lead into a four-lane public highway which runs parallel to the business block at a distance of thirty feet. There is nothing to stop highway traffic from coming onto the business block and upon arrival a traveler may make free use of the facilities available there. In short the town and its shopping district are accessible to and freely used by the public in general and there is nothing to distinguish them from any other town and shopping center except the fact that the title to the property belongs to a private corporation." Id., at 502-503.
The Court pointed out that if the "title" to Chickasaw had "belonged not to a private but to a municipal corporation and had appellant been arrested for violating a municipal ordinance rather than a ruling by those appointed by the corporation to manage a company town it would have been clear that appellant's conviction must be reversed." Id., at 504. Concluding that Gulf's "property interests" should not be allowed to lead to a different result in Chickasaw, which did "not function differently from any other town," id., at 506-508, the Court invoked the First and Fourteenth Amendments to reverse the appellant's conviction.
It was the Marsh case that in 1968 provided the foundation for the Court's decision in Amalgamated Food Employees Union v. Logan Valley Plaza, 391 U.S. 308. That case involved peaceful picketing within a large *515 shopping center near Altoona, Pa. One of the tenants of the shopping center was a retail store that employed a wholly nonunion staff. Members of a local union picketed the store, carrying signs proclaiming that it was nonunion and that its employees were not receiving union wages or other union benefits. The picketing took place on the shopping center's property in the immediate vicinity of the store. A Pennsylvania court issued an injunction that required all picketing to be confined to public areas outside the shopping center, and the Supreme Court of Pennsylvania affirmed the issuance of this injunction. This Court held that the doctrine of the Marsh case required reversal of that judgment.
The Court's opinion pointed out that the First and Fourteenth Amendments would clearly have protected the picketing if it had taken place on a public sidewalk:
"It is clear that if the shopping center premises were not privately owned but instead constituted the business area of a municipality, which they to a large extent resemble, petitioners could not be barred from exercising their First Amendment rights there on the sole ground that title to the property was in the municipality. Lovell v. Griffin, 303 U.S. 444 (1938); Hague v. CIO, 307 U.S. 496 (1939); Schneider v. State, 308 U.S. 147 (1939); Jamison v. Texas, 318 U.S. 413 (1943). The essence of those opinions is that streets, sidewalks, parks, and other similar public places are so historically associated with the exercise of First Amendment rights that access to them for the purpose of exercising such rights cannot constitutionally be denied broadly and absolutely." 391 U.S., at 315.
The Court's opinion then reviewed the Marsh case in detail, emphasized the similarities between the business *516 block in Chickasaw, Ala., and the Logan Valley shopping center, and unambiguously concluded:
"The shopping center here is clearly the functional equivalent of the business district of Chickasaw involved in Marsh." 391 U.S., at 318.
Upon the basis of that conclusion, the Court held that the First and Fourteenth Amendments required reversal of the judgment of the Pennsylvania Supreme Court.
There were three dissenting opinions in the Logan Valley case, one of them by the author of the Court's opinion in Marsh, Mr. Justice Black. His disagreement with the Court's reasoning was total:
"In affirming petitioners' contentions the majority opinion relies on Marsh v. Alabama, supra, and holds that respondents' property has been transformed to some type of public property. But Marsh was never intended to apply to this kind of situation. Marsh dealt with the very special situation of a company-owned town, complete with streets, alleys, sewers, stores, residences, and everything else that goes to make a town. . . . I can find very little resemblance between the shopping center involved in this case and Chickasaw, Alabama. There are no homes, there is no sewage disposal plant, there is not even a post office on this private property which the Court now considers the equivalent of a `town.' " 391 U.S., at 330-331 (footnote omitted).
"The question is, Under what circumstances can private property be treated as though it were public? The answer that Marsh gives is when that property has taken on all the attributes of a town, i. e., `residential buildings, streets, a system of sewers, a sewage disposal plant and a "business block" on which business places are situated.' 326 U.S., at 502. I *517 can find nothing in Marsh which indicates that if one of these features is present, e. g., a business district, this is sufficient for the Court to confiscate a part of an owner's private property and give its use to people who want to picket on it." Id., at 332.
"To hold that store owners are compelled by law to supply picketing areas for pickets to drive store customers away is to create a court-made law wholly disregarding the constitutional basis on which private ownership of property rests in this country. . . ." Id., at 332-333.
Four years later the Court had occasion to reconsider the Logan Valley doctrine in Lloyd Corp. v. Tanner, 407 U.S. 551. That case involved a shopping center covering some 50 acres in downtown Portland, Ore. On a November day in 1968 five young people entered the mall of the shopping center and distributed handbills protesting the then ongoing American military operations in Vietnam. Security guards told them to leave, and they did so, "to avoid arrest." Id., at 556. They subsequently brought suit in a Federal District Court, seeking declaratory and injunctive relief. The trial court ruled in their favor, holding that the distribution of handbills on the shopping center's property was protected by the First and Fourteenth Amendments. The Court of Appeals for the Ninth Circuit affirmed the judgment, 446 F.2d 545, expressly relying on this Court's Marsh and Logan Valley decisions. This Court reversed the judgment of the Court of Appeals.
The Court in its Lloyd opinion did not say that it was overruling the Logan Valley decision. Indeed, a substantial portion of the Court's opinion in Lloyd was devoted to pointing out the differences between the two cases, noting particularly that, in contrast to the hand-billing in Lloyd, the picketing in Logan Valley had been *518 specifically directed to a store in the shopping center and the pickets had had no other reasonable opportunity to reach their intended audience. 407 U.S., at 561-567.[5] But the fact is that the reasoning of the Court's opinion in Lloyd cannot be squared with the reasoning of the Court's opinion in Logan Valley.
It matters not that some Members of the Court may continue to believe that the Logan Valley case was rightly decided.[6] Our institutional duty is to follow until changed the law as it now is, not as some Members of the Court might wish it to be. And in the performance of that duty we make clear now, if it was not clear before, that the rationale of Logan Valley did not survive the Court's decision in the Lloyd case.[7] Not only did the Lloyd opinion incorporate lengthy excerpts from two of the dissenting opinions in Logan Valley, 407 U. S., at 562-563, 565; the ultimate holding in Lloyd amounted to a total rejection of the holding in Logan Valley:
"The basic issue in this case is whether respondents, in the exercise of asserted First Amendment *519 rights, may distribute handbills on Lloyd's private property contrary to its wishes and contrary to a policy enforced against all handbilling. In addressing this issue, it must be remembered that the First and Fourteenth Amendments safeguard the rights of free speech and assembly by limitations on state action, not on action by the owner of private property used nondiscriminatorily for private purposes only. . . ." 407 U.S., at 567.
"Respondents contend . . . that the property of a large shopping center is `open to the public,' serves the same purposes as a `business district' of a municipality, and therefore has been dedicated to certain types of public use. The argument is that such a center has sidewalks, streets, and parking areas which are functionally similar to facilities customarily provided by municipalities. It is then asserted that all members of the public, whether invited as customers or not, have the same right of free speech as they would have on the similar public facilities in the streets of a city or town.
"The argument reaches too far. The Constitution by no means requires such an attenuated doctrine of dedication of private property to public use. The closest decision in theory, Marsh v. Alabama, supra, involved the assumption by a private enterprise of all of the attributes of a state-created municipality and the exercise by that enterprise of semi-official municipal functions as a delegate of the State. In effect, the owner of the company town was performing the full spectrum of municipal powers and stood in the shoes of the State. In the instant case there is no comparable assumption or exercise of municipal functions or power." Id., at 568-569 (footnote omitted).
*520 "We hold that there has been no such dedication of Lloyd's privately owned and operated shopping center to public use as to entitle respondents to exercise therein the asserted First Amendment rights. . . ." Id., at 570.
If a large self-contained shopping center is the functional equivalent of a municipality, as Logan Valley held, then the First and Fourteenth Amendments would not permit control of speech within such a center to depend upon the speech's content.[8] For while a municipality may constitutionally impose reasonable time, place, and manner regulations on the use of its streets and sidewalks for First Amendment purposes, see Cox v. New Hampshire, 312 U.S. 569; Poulos v. New Hampshire, 345 U.S. 395, and may even forbid altogether such use of some of its facilities, see Adderley v. Florida, 385 U.S. 39; what a municipality may not do under the First and Fourteenth Amendments is to discriminate in the regulation of expression on the basis of the content of that expression, Erznoznik v. City of Jacksonville, 422 U.S. 205. "[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95.[9] It conversely follows, therefore, that if the respondents in the Lloyd case did not have a First Amendment right to enter that shopping center to distribute handbills concerning Vietnam, then the pickets in the present case did not have a First Amendment *521 right to enter this shopping center for the purpose of advertising their strike against the Butler Shoe Co.
We conclude, in short, that under the present state of the law the constitutional guarantee of free expression has no part to play in a case such as this.
III
From what has been said it follows that the rights and liabilities of the parties in this case are dependent exclusively upon the National Labor Relations Act. Under the Act the task of the Board, subject to review by the courts, is to resolve conflicts between § 7 rights and private property rights, "and to seek a proper accommodation between the two." Central Hardware Co. v. NLRB, 407 U. S., at 543. What is "a proper accommodation" in any situation may largely depend upon the content and the context of the § 7 rights being asserted. The task of the Board and the reviewing courts under the Act, therefore, stands in conspicuous contrast to the duty of a court in applying the standards of the First Amendment, which requires "above all else" that expression must not be restricted by government "because of its message, its ideas, its subject matter, or its content."
In the Central Hardware case, and earlier in the case of NLRB v. Babcock & Wilcox Co., 351 U.S. 105, the Court considered the nature of the Board's task in this area under the Act. Accommodation between employees' § 7 rights and employers' property rights, the Court said in Babcock & Wilcox, "must be obtained with as little destruction of one as is consistent with the maintenance of the other." 351 U.S., at 112.
Both Central Hardware and Babcock & Wilcox involved organizational activity carried on by nonemployees on the employers' property.[10] The context of the § 7 *522 activity in the present case was different in several respects which may or may not be relevant in striking the proper balance. First, it involved lawful economic strike activity rather than organizational activity. See Steel-workers v. NLRB, 376 U.S. 492, 499; Bus Employees v. Missouri, 374 U.S. 74, 82; NLRB v. Erie Resistor Corp., 373 U.S. 221, 234. Cf. Houston Insulation Contractors Assn. v. NLRB, 386 U.S. 664, 668-669. Second, the § 7 activity here was carried on by Butler's employees (albeit not employees of its shopping center store), not by outsiders. See NLRB v. Babcock & Wilcox Co., supra, at 111-113. Third, the property interests impinged upon in this case were not those of the employer against whom the § 7 activity was directed, but of another.[11]
The Babcock & Wilcox opinion established the basic objective under the Act: accommodation of § 7 rights and private property rights "with as little destruction of one as is consistent with the maintenance of the other."[12] The locus of that accommodation, however, may fall at differing points along the spectrum depending on the nature and strength of the respective § 7 rights and private property rights asserted in any given context. In each generic situation, the primary responsibility for making this accommodation must rest with the Board in the first instance. See NLRB v. Babcock & Wilcox, supra, at 112; cf. NLRB v. Erie Resistor Corp., supra, at 235-236; *523 NLRB v. Truckdrivers Union, 353 U.S. 87, 97. "The responsibility to adapt the Act to changing patterns of industrial life is entrusted to the Board." NLRB v. Weingarten, Inc., 420 U.S. 251, 266.
For the reasons stated in this opinion, the judgment is vacated and the case is remanded to the Court of Appeals with directions to remand to the National Labor Relations Board, so that the case may be there considered under the statutory criteria of the National Labor Relations Act alone.
It is so ordered.
MR. JUSTICE STEVENS took no part in the consideration or decision of this case.
MR. | A group of labor union members who engaged in peaceful primary picketing within the confines of a privately owned shopping center were threatened by an agent of the owner with arrest for criminal trespass if they did not depart. The question presented is whether this threat violated the National Labor Relations Act, as amended, 29 U.S. C. 151 et seq. The National Labor Relations Board concluded that it did, 205 N. L. R. B. 628, and the Court of Appeals for the Fifth Circuit agreed. We granted certiorari because of the seemingly important questions of federal law presented. *509 I The petitioner, Scott Hudgens, is the owner of the North DeKalb Shopping Center, located in suburban Atlanta, Ga. The center consists of a single large building with an enclosed mall. Surrounding the building is a parking area which can accommodate 2,640 automobiles. The shopping center houses 60 retail stores leased to various businesses. One of the lessees is the Butler Shoe Most of the stores, including Butler's, can be entered only from the interior mall. In January 11, warehouse employees of the Butler Shoe went on strike to protest the company's failure to agree to demands made by their union in contract negotiations.[1] The strikers decided to picket not only Butler's warehouse but its nine retail stores in the Atlanta area as well, including the store in the North DeKalb Shopping Center. On January 22, 11, four of the striking warehouse employees entered the center's enclosed mall carrying placards which read: "Butler Shoe Warehouse on Strike, AFL-CIO, Local 315." The general manager of the shopping center informed the employees that they could not picket within the mall or on the parking lot and threatened them with arrest if they did not leave. The employees departed but returned a short time later and began picketing in an area of the mall immediately adjacent to the entrances of the Butler store. After the picketing had continued for approximately 30 minutes, the shopping center manager again informed the pickets that if they did not leave they would be arrested for trespassing. The pickets departed. The union subsequently filed with the Board an unfair labor practice charge against Hudgens, alleging interference with rights protected by 7 of the Act, 29 *510 U. S. C. 157.[2] Relying on this Court's decision in Food the Board entered a cease-and-desist order against Hudgens, reasoning that because the warehouse employees enjoyed a First Amendment right to picket on the shopping center property, the owner's threat of arrest violated 8 (a) (1) of the Act, 29 U.S. C. 158 (a) (1).[3] Hudgens filed a petition for review in the Court of Appeals for the Fifth Circuit. Soon thereafter this Court decided Lloyd and Central Hardware and the Court of Appeals remanded the case to the Board for reconsideration in light of those two decisions. The Board, in turn, remanded to an Administrative Law Judge, who made findings of fact, recommendations, and conclusions to the effect that Hudgens had committed an unfair labor practice by excluding the pickets. *511 This result was ostensibly reached under the statutory criteria set forth in a case which held that union organizers who seek to solicit for union membership may intrude on an employer's private property if no alternative means exist for communicating with the employees. But the Administrative Law Judge's opinion also relied on this Court's constitutional decision in Logan for a "realistic view of the facts." The Board agreed with the findings and recommendations of the Administrative Law Judge, but departed somewhat from his reasoning. It concluded that the pickets were within the scope of Hudgens' invitation to members of the public to do business at the shopping center, and that it was, therefore, immaterial whether or not there existed an alternative means of communicating with the customers and employees of the Butler store.[4] Hudgens again petitioned for review in the Court of Appeals for the Fifth Circuit, and there the Board changed its tack and urged that the case was controlled not by Babcock & but by Republic Aviation a case which held that an employer commits an unfair labor practice if he enforces a no-solicitation rule against employees on his premises who are also union organizers, unless he can prove that the rule is necessitated by special circumstances. The Court of Appeals enforced the Board's cease-and-desist order but on the basis of yet another theory. While acknowledging that the source of the pickets' rights was 7 of the Act, the Court of Appeals held that the competing constitutional and property right considerations discussed in Lloyd "burde[n] the General Counsel with the duty to *512 prove that other locations less intrusive upon Hudgens' property rights than picketing inside the mall were either unavailable or ineffective," and that the Board's General Counsel had met that burden in this case. In this Court the petitioner Hudgens continues to urge that Babcock & is the controlling precedent, and that under the criteria of that case the judgment of the Court of Appeals should be reversed. The respondent union agrees that a statutory standard governs, but insists that, since the 7 activity here was not organizational as in Babcock but picketing in support of a lawful economic strike, an appropriate accommodation of the competing interests must lead to an affirmance of the Court of Appeals' judgment. The respondent Board now contends that the conflict between employee picketing rights and employer property rights in a case like this must be measured in accord with the commands of the First Amendment, pursuant to the Board's asserted understanding of Lloyd and that the judgment of the Court of Appeals should be affirmed on the basis of that standard. II As the above recital discloses, the history of this litigation has been a history of shifting positions on the part of the litigants, the Board, and the Court of Appeals. It has been a history, in short, of considerable confusion, engendered at least in part by decisions of this Court that intervened during the course of the litigation. In the present posture of the case the most basic question is whether the respective rights and liabilities of the parties are to be decided under the criteria of the National Labor Relations Act alone, under a First Amendment standard, or under some combination of the two. It is to that question, accordingly, that we now turn. *513 It is, of course, a commonplace that the constitutional guarantee of free speech is a guarantee only against abridgment by government, federal or state. See Columbia Broadcasting System, Thus, while statutory or common law may in some situations extend protection or provide redress against a private corporation or person who seeks to abridge the free expression of others, no such protection or redress is provided by the Constitution itself. This elementary proposition is little more than a truism. But even truisms are not always unexceptionably true, and an exception to this one was recognized almost 30 years ago in In Marsh, a Jehovah's Witness who had distributed literature without a license on a sidewalk in Chickasaw, Ala., was convicted of criminal trespass. Chickasaw was a so-called company town, wholly owned by the Gulf Shipbuilding It was described in the Court's opinion as follows: "Except for [ownership by a private corporation] it has all the characteristics of any other American town. The property consists of residential buildings, streets, a system of sewers, a sewage disposal plant and a `business block' on which business places are situated. A deputy of the Mobile County Sheriff, paid by the company, serves as the town's policeman. Merchants and service establishments have rented the stores and business places on the business block and the United States uses one of the places as a post office from which six carriers deliver mail to the people of Chickasaw and the adjacent area. The town and the surrounding neighborhood, which can not be distinguished from the Gulf property by anyone not familiar with the property lines, are thickly *514 settled, and according to all indications the residents use the business block as their regular shopping center. To do so, they now, as they have for many years, make use of a company-owned paved street and sidewalk located alongside the store fronts in order to enter and leave the stores and the post office. Intersecting company-owned roads at each end of the business block lead into a four-lane public highway which runs parallel to the business block at a distance of thirty feet. There is nothing to stop highway traffic from coming onto the business block and upon arrival a traveler may make free use of the facilities available there. In short the town and its shopping district are accessible to and freely used by the public in general and there is nothing to distinguish them from any other town and shopping center except the fact that the title to the property belongs to a private corporation." The Court pointed out that if the "title" to Chickasaw had "belonged not to a private but to a municipal corporation and had appellant been arrested for violating a municipal ordinance rather than a ruling by those appointed by the corporation to manage a company town it would have been clear that appellant's conviction must be reversed." Concluding that Gulf's "property interests" should not be allowed to lead to a different result in Chickasaw, which did "not function differently from any other town," the Court invoked the First and Fourteenth Amendments to reverse the appellant's conviction. It was the Marsh case that in 1968 provided the foundation for the Court's decision in Amalgamated Food Employees That case involved peaceful picketing within a large *515 shopping center near Altoona, Pa. One of the tenants of the shopping center was a retail store that employed a wholly nonunion staff. Members of a local union picketed the store, carrying signs proclaiming that it was nonunion and that its employees were not receiving union wages or other union benefits. The picketing took place on the shopping center's property in the immediate vicinity of the store. A Pennsylvania court issued an injunction that required all picketing to be confined to public areas outside the shopping center, and the Supreme Court of Pennsylvania affirmed the issuance of this injunction. This Court held that the doctrine of the Marsh case required reversal of that judgment. The Court's opinion pointed out that the First and Fourteenth Amendments would clearly have protected the picketing if it had taken place on a public sidewalk: "It is clear that if the shopping center premises were not privately owned but instead constituted the business area of a municipality, which they to a large extent resemble, petitioners could not be barred from exercising their First Amendment rights there on the sole ground that title to the property was in the municipality. ; ; ; The essence of those opinions is that streets, sidewalks, parks, and other similar public places are so historically associated with the exercise of First Amendment rights that access to them for the purpose of exercising such rights cannot constitutionally be denied broadly and absolutely." The Court's opinion then reviewed the Marsh case in detail, emphasized the similarities between the business *516 block in Chickasaw, Ala., and the Logan shopping center, and unambiguously concluded: "The shopping center here is clearly the functional equivalent of the business district of Chickasaw involved in Marsh." Upon the basis of that conclusion, the Court held that the First and Fourteenth Amendments required reversal of the judgment of the Pennsylvania Supreme Court. There were three dissenting opinions in the Logan case, one of them by the author of the Court's opinion in Marsh, Mr. Justice Black. His disagreement with the Court's reasoning was total: "In affirming petitioners' contentions the majority opinion relies on and holds that respondents' property has been transformed to some type of public property. But Marsh was never intended to apply to this kind of situation. Marsh dealt with the very special situation of a company-owned town, complete with streets, alleys, sewers, stores, residences, and everything else that goes to make a town. I can find very little resemblance between the shopping center involved in this case and Chickasaw, There are no homes, there is no sewage disposal plant, there is not even a post office on this private property which the Court now considers the equivalent of a `town.' " -331 "The question is, Under what circumstances can private property be treated as though it were public? The answer that Marsh gives is when that property has taken on all the attributes of a town, i. e., `residential buildings, streets, a system of sewers, a sewage disposal plant and a "business block" on which business places are situated.' I *517 can find nothing in Marsh which indicates that if one of these features is present, e. g., a business district, this is sufficient for the Court to confiscate a part of an owner's private property and give its use to people who want to picket on it." "To hold that store owners are compelled by law to supply picketing areas for pickets to drive store customers away is to create a court-made law wholly disregarding the constitutional basis on which private ownership of property rests in this country." -333. Four years later the Court had occasion to reconsider the Logan doctrine in Lloyd That case involved a shopping center covering some 50 acres in downtown Portland, Ore. On a November day in 1968 five young people entered the mall of the shopping center and distributed handbills protesting the then ongoing American military operations in Vietnam. Security guards told them to leave, and they did so, "to avoid arrest." They subsequently brought suit in a Federal District Court, seeking declaratory and injunctive relief. The trial court ruled in their favor, holding that the distribution of handbills on the shopping center's property was protected by the First and Fourteenth Amendments. The Court of Appeals for the Ninth Circuit affirmed the judgment, expressly relying on this Court's Marsh and Logan decisions. This Court reversed the judgment of the Court of Appeals. The Court in its Lloyd opinion did not say that it was overruling the Logan decision. Indeed, a substantial portion of the Court's opinion in Lloyd was devoted to pointing out the differences between the two cases, noting particularly that, in contrast to the hand-billing in Lloyd, the picketing in Logan had been *518 specifically directed to a store in the shopping center and the pickets had had no other reasonable opportunity to reach their intended audience. -567.[5] But the fact is that the reasoning of the Court's opinion in Lloyd cannot be squared with the reasoning of the Court's opinion in Logan It matters not that some Members of the Court may continue to believe that the Logan case was rightly decided.[6] Our institutional duty is to follow until changed the law as it now is, not as some Members of the Court might wish it to be. And in the performance of that duty we make clear now, if it was not clear before, that the rationale of Logan did not survive the Court's decision in the Lloyd case.[7] Not only did the Lloyd opinion incorporate lengthy excerpts from two of the dissenting opinions in Logan -563, 565; the ultimate holding in Lloyd amounted to a total rejection of the holding in Logan : "The basic issue in this case is whether respondents, in the exercise of asserted First Amendment *519 rights, may distribute handbills on Lloyd's private property contrary to its wishes and contrary to a policy enforced against all handbilling. In addressing this issue, it must be remembered that the First and Fourteenth Amendments safeguard the rights of free speech and assembly by limitations on state action, not on action by the owner of private property used nondiscriminatorily for private purposes only." "Respondents contend that the property of a large shopping center is `open to the public,' serves the same purposes as a `business district' of a municipality, and therefore has been dedicated to certain types of public use. The argument is that such a center has sidewalks, streets, and parking areas which are functionally similar to facilities customarily provided by municipalities. It is then asserted that all members of the public, whether invited as customers or not, have the same right of free speech as they would have on the similar public facilities in the streets of a city or town. "The argument reaches too far. The Constitution by no means requires such an attenuated doctrine of dedication of private property to public use. The closest decision in theory, involved the assumption by a private enterprise of all of the attributes of a state-created municipality and the exercise by that enterprise of semi-official municipal functions as a delegate of the State. In effect, the owner of the company town was performing the full spectrum of municipal powers and stood in the shoes of the State. In the instant case there is no comparable assumption or exercise of municipal functions or power." *520 "We hold that there has been no such dedication of Lloyd's privately owned and operated shopping center to public use as to entitle respondents to exercise therein the asserted First Amendment rights." If a large self-contained shopping center is the functional equivalent of a municipality, as Logan held, then the First and Fourteenth Amendments would not permit control of speech within such a center to depend upon the speech's content.[8] For while a municipality may constitutionally impose reasonable time, place, and manner regulations on the use of its streets and sidewalks for First Amendment purposes, see ; and may even forbid altogether such use of some of its facilities, see ; what a municipality may not do under the First and Fourteenth Amendments is to discriminate in the regulation of expression on the basis of the content of that expression, "[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." Police Dept. of[9] It conversely follows, therefore, that if the respondents in the Lloyd case did not have a First Amendment right to enter that shopping center to distribute handbills concerning Vietnam, then the pickets in the present case did not have a First Amendment *521 right to enter this shopping center for the purpose of advertising their strike against the Butler Shoe We conclude, in short, that under the present state of the law the constitutional guarantee of free expression has no part to play in a case such as this. III From what has been said it follows that the rights and liabilities of the parties in this case are dependent exclusively upon the National Labor Relations Act. Under the Act the task of the Board, subject to review by the courts, is to resolve conflicts between 7 rights and private property rights, "and to seek a proper accommodation between the two." Central Hardware What is "a proper accommodation" in any situation may largely depend upon the content and the context of the 7 rights being asserted. The task of the Board and the reviewing courts under the Act, therefore, stands in conspicuous contrast to the duty of a court in applying the standards of the First Amendment, which requires "above all else" that expression must not be restricted by government "because of its message, its ideas, its subject matter, or its content." In the Central Hardware case, and earlier in the case of the Court considered the nature of the Board's task in this area under the Act. Accommodation between employees' 7 rights and employers' property rights, the Court said in Babcock & "must be obtained with as little destruction of one as is consistent with the maintenance of the other." Both Central Hardware and Babcock & involved organizational activity carried on by nonemployees on the employers' property.[10] The context of the 7 *522 activity in the present case was different in several respects which may or may not be relevant in striking the proper balance. First, it involved lawful economic strike activity rather than organizational activity. See Steel-workers v. ; Bus ; v. Erie Resistor Cf. Houston Insulation Contractors Assn. v. Second, the 7 activity here was carried on by Butler's employees (albeit not employees of its shopping center store), not by outsiders. See Third, the property interests impinged upon in this case were not those of the employer against whom the 7 activity was directed, but of another.[11] The Babcock & opinion established the basic objective under the Act: accommodation of 7 rights and private property rights "with as little destruction of one as is consistent with the maintenance of the other."[12] The locus of that accommodation, however, may fall at differing points along the spectrum depending on the nature and strength of the respective 7 rights and private property rights asserted in any given context. In each generic situation, the primary responsibility for making this accommodation must rest with the Board in the first instance. See v. Babcock & ; cf. v. Erie Resistor ; *523 v. Truckdrivers Union, "The responsibility to adapt the Act to changing patterns of industrial life is entrusted to the Board." v. Weingarten, Inc., For the reasons stated in this opinion, the judgment is vacated and the case is remanded to the Court of Appeals with directions to remand to the National Labor Relations Board, so that the case may be there considered under the statutory criteria of the National Labor Relations Act alone. It is so ordered. MR. JUSTICE STEVENS took no part in the consideration or decision of this case. MR. |
Justice Stevens | concurring | false | Hunt v. Cromartie | 1999-05-17T00:00:00 | null | https://www.courtlistener.com/opinion/1087691/hunt-v-cromartie/ | https://www.courtlistener.com/api/rest/v3/clusters/1087691/ | 1,999 | 1998-054 | 2 | 9 | 0 | The disputed issue of fact in this case is whether political considerations or racial considerations provide the "primary" explanation for the seemingly irregular configuration of North Carolina's Twelfth Congressional District. The Court concludes that evidence submitted to the District Court on behalf of the State made it inappropriate for that Court to grant appellees' motion for summary judgment. I agree with that conclusion, but write separately to emphasize the importance of two undisputed matters of fact that are firmly established by the historical record and confirmed by the record in this case.
First, bizarre configuration is the traditional hallmark of the political gerrymander. This obvious proposition is supported by the work product of Elbridge Gerry, by the "swan" designed by New Jersey Republicans in 1982, see Karcher v. Daggett, 462 U.S. 725, 744, 762-763 (1983), and by the Indiana plan reviewed in Davis v. Bandemer, 478 U.S. 109, 183, 185 (1986). As we learned in Gomillion v. Lightfoot, 364 U.S. 339 (1960), a racial gerrymander may have an equally "uncouth" shape. See id., at 340, 348. Thus, the shape of the congressional district at issue in this case provides strong evidence that either political or racial factors motivated its architects, but sheds no light on the question of which set of factors was more responsible for subordinating any of the State's "traditional" districting principles.[1]
*556 Second, as the Presidential campaigns conducted by Strom Thurmond in 1948 and by George Wallace in 1968, and the Senate campaigns conducted more recently by Jesse Helms, have demonstrated, a great many registered Democrats in the South do not always vote for Democratic candidates in federal elections. The Congressional Quarterly recently recorded the fact that in North Carolina "Democratic voter registration edges . . . no longer translat[e] into success in statewide or national races. In recent years, conservative white Democrats have gravitated toward Republican candidates." See Congressional Quarterly Inc., Congressional Districts in the 1990s, p. 549 (1993).[2] This voting pattern *557 has proved to be particularly pronounced in voting districts that contain more than about one-third African-American residents. See Pildes, The Politics of Race, 108 Harv. L. Rev. 1359, 1382-1386 (1995). There was no need for expert testimony to establish the proposition that "in North Carolina, party registration and party preference do not always correspond." Ante, at 551.
Indeed, for me the most remarkable feature of the District Court's erroneous decision is that it relied entirely on data concerning the location of registered Democrats and ignored the more probative evidence of how the people who live near the borders of District 12 actually voted in recent elections. That evidence not only undermines and rebuts the inferences the District Court drew from the party registration data, but also provides strong affirmative evidence that is thoroughly consistent with the sworn testimony of the two members of the state legislature who were most active in drawing the boundaries of District 12. The affidavits of those members, stating that district lines were drawn according to election results, not voter registration, are uncontradicted.[3] And almost all of the majority-Democrat registered precincts that the state legislature excluded from District 12 in favor of precincts with higher black populations produced significantly less dependable Democratic results and actually voted for one or more Republicans in recent elections.
The record supports the conclusion that the most loyal Democrats living near the borders of District 12 "happen to be black Democrats," see ibid., and I have no doubt that the legislature was conscious of that fact when it enacted this apportionment plan. But everyone agrees that that fact is not sufficient to invalidate the district. Cf. ante, at 551-552. That fact would not even be enough, under this Court's decisions, to invalidate a governmental action, that, unlike the *558 action at issue here, actually has an adverse impact on a particular racial group. See, e. g., Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 279 (1979) (holding that the Equal Protection Clause is implicated only when "a state legislatur[e] selected or reaffirmed a particular course of action at least in part `because of,' not merely `in spite of,' its adverse effects upon an identifiable group"); Washington v. Davis, 426 U.S. 229 (1976); Hernandez v. New York, 500 U.S. 352, 375 (1991) (O'Connor, J., concurring in judgment) ("No matter how closely tied or significantly correlated to race the explanation for [a governmental action] may be, the [action] does not implicate the Equal Protection Clause unless it is based on race").
Accordingly, appellees' evidence may include nothing more than (i) a bizarre shape, which is equally consistent with either political or racial motivation, (ii) registration data, which are virtually irrelevant when actual voting results were available and which point in a different direction, and (iii) knowledge of the racial composition of the district. Because we do not have before us the question whether the District Court erred in denying the State's motion for summary judgment, I need not decide whether that circumstantial evidence even raises an inference of improper motive. It is sufficient at this stage of the proceedings to join in the Court's judgment of reversal, which I do.
| The disputed issue of fact in this case is whether political considerations or racial considerations provide the "primary" explanation for the seemingly irregular configuration of North Carolina's Twelfth Congressional District. The Court concludes that evidence submitted to the District Court on behalf of the State made it inappropriate for that Court to grant appellees' motion for summary judgment. I agree with that conclusion, but write separately to emphasize the importance of two undisputed matters of fact that are firmly established by the historical record and confirmed by the record in this case. First, bizarre configuration is the traditional hallmark of the political gerrymander. This obvious proposition is supported by the work product of Elbridge Gerry, by the "swan" designed by New Jersey Republicans in 1982, see and by the Indiana plan reviewed in As we learned in a racial gerrymander may have an equally "uncouth" shape. See Thus, the shape of the congressional district at issue in this case provides strong evidence that either political or racial factors motivated its architects, but sheds no light on the question of which set of factors was more responsible for subordinating any of the State's "traditional" districting principles.[1] *556 Second, as the Presidential campaigns conducted by Strom Thurmond in 1948 and by George Wallace in 1968, and the Senate campaigns conducted more recently by Jesse Helms, have demonstrated, a great many registered Democrats in the South do not always vote for Democratic candidates in federal elections. The Congressional Quarterly recently recorded the fact that in North Carolina "Democratic voter registration edges no longer translat[e] into success in statewide or national races. In recent years, conservative white Democrats have gravitated toward Republican candidates." See Congressional Quarterly Inc., Congressional Districts in the 1990s, p. 549 (1993).[2] This voting pattern *557 has proved to be particularly pronounced in voting districts that contain more than about one-third African-American residents. See Pildes, The Politics of Race, There was no need for expert testimony to establish the proposition that "in North Carolina, party registration and party preference do not always correspond." Ante, at 551. Indeed, for me the most remarkable feature of the District Court's erroneous decision is that it relied entirely on data concerning the location of registered Democrats and ignored the more probative evidence of how the people who live near the borders of District 12 actually voted in recent elections. That evidence not only undermines and rebuts the inferences the District Court drew from the party registration data, but also provides strong affirmative evidence that is thoroughly consistent with the sworn testimony of the two members of the state legislature who were most active in drawing the boundaries of District 12. The affidavits of those members, stating that district lines were drawn according to election results, not voter registration, are uncontradicted.[3] And almost all of the majority-Democrat registered precincts that the state legislature excluded from District 12 in favor of precincts with higher black populations produced significantly less dependable Democratic results and actually voted for one or more Republicans in recent elections. The record supports the conclusion that the most loyal Democrats living near the borders of District 12 "happen to be black Democrats," see ib and I have no doubt that the legislature was conscious of that fact when it enacted this apportionment plan. But everyone agrees that that fact is not sufficient to invalidate the district. Cf. ante, at 551-552. That fact would not even be enough, under this Court's decisions, to invalidate a governmental action, that, unlike the *558 action at issue here, actually has an adverse impact on a particular racial group. See, e. g., Personnel Administrator of ; ; ("No matter how closely tied or significantly correlated to race the explanation for [a governmental action] may be, the [action] does not implicate the Equal Protection Clause unless it is based on race"). Accordingly, appellees' evidence may include nothing more than (i) a bizarre shape, which is equally consistent with either political or racial motivation, (ii) registration data, which are virtually irrelevant when actual voting results were available and which point in a different direction, and (iii) knowledge of the racial composition of the district. Because we do not have before us the question whether the District Court erred in denying the State's motion for summary judgment, I need not decide whether that circumstantial evidence even raises an inference of improper motive. It is sufficient at this stage of the proceedings to join in the Court's judgment of reversal, which I do. |
Justice Stevens | concurring | false | Inyo County, California v. Paiute-Shoshone Indians of the Bishop Community of the Bishop Colony | 2003-05-19T00:00:00 | null | https://www.courtlistener.com/opinion/127923/inyo-county-california-v-paiute-shoshone-indians-of-the-bishop-community/ | https://www.courtlistener.com/api/rest/v3/clusters/127923/ | 2,003 | 2002-054 | 1 | 9 | 0 | In my judgment a Native American tribe is a "person" who may sue under 42 U.S. C. § 1983. The Tribe's complaint, however, does not state a cause of action under § 1983 because the county's alleged infringement of the Tribe's sovereign prerogatives did not deprive the Tribe of "rights, privileges, or immunities secured by the Constitution and laws" within the meaning of § 1983. At bottom, rather than relying on an Act of Congress or a provision of the Constitution, the Tribe's complaint rests on the judge-made doctrine of tribal immunity — a doctrine that "developed almost by accident." Kiowa Tribe of Okla. v. Manufacturing Technologies, Inc., 523 U.S. 751, 756 (1998). Because many applications of that doctrine are both anomalous and unjust, see id., at 760, 764-766 (STEVENS, J., dissenting), I would not accord it the same status as the "laws" referenced in § 1983.
It is demeaning to Native American tribes to deny them the same access to a § 1983 remedy that is available to any other person whose constitutional rights are violated by persons acting under color of state law. The text of § 1983 — which provides that § 1983 defendants are "person[s] who, under color of [State law,]" subject any "other person" to a deprivation of a federal right — adequately explains why a tribe is not a person subject to suit under § 1983. For tribes generally do not act under color of state law. But that text sheds no light on the question whether the tribe is an "other person" who may bring a § 1983 suit when the tribe is the victim of a constitutional violation. The ordinary meaning of the word "person" as used in federal statutes,1 as well as the specific remedial purpose of § 1983, support the conclusion that a tribe should be able to invoke the protections of the statute if its constitutional rights are violated.2
In this case, however, the Tribe's allegations do not state a cause of action under § 1983. The execution of the warrant challenged in this case would unquestionably have been lawful if the casino had been the property of an ordinary commercial corporation. See ante, at 711 ("There is in this case no allegation that the County lacked probable cause or that the warrant was otherwise defective"). Thus, the Tribe rests its case entirely on its claim that, as a sovereign, it should be accorded a special immunity that private casinos do not enjoy. See ibid. That sort of claim to special privileges, which is based entirely on the Tribe's sovereign status, is not one for which the § 1983 remedy was enacted.
Accordingly, while I agree with the Court that the judgment should be set aside, I do not join the Court's opinion.
Notes:
1
The Dictionary Act, which was passed just two months before § 1983 and was designed to supply rules of construction for all legislation, provided that "the word `person' may extend and be applied to bodies politic and corporate...." Act of Feb. 25, 1871, § 2, 16 Stat. 431
2
Our holding inWill v. Michigan Dept. of State Police, 491 U.S. 58, 65 (1989), that a State is not a "person" within § 1983 is fully consistent with this view. Will rested on "the ordinary rule of statutory construction that if Congress intends to alter the `usual constitutional balance between the States and the Federal Government,' it must make its intention to do so `unmistakably clear in the language of the statute.' Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242 (1985); see also Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 99 (1984)." Ibid | In my judgment a Native American tribe is a "person" who may sue under 42 U.S. C. 1983. The Tribe's complaint, however, does not state a cause of action under 1983 because the county's alleged infringement of the Tribe's sovereign prerogatives did not deprive the Tribe of "rights, privileges, or immunities secured by the Constitution and laws" within the meaning of 1983. At bottom, rather than relying on an Act of Congress or a provision of the Constitution, the Tribe's complaint rests on the judge-made doctrine of tribal immunity — a doctrine that "developed almost by accident." Kiowa Tribe of Because many applications of that doctrine are both anomalous and unjust, see I would not accord it the same status as the "laws" referenced in 1983. It is demeaning to Native American tribes to deny them the same access to a 1983 remedy that is available to any other person whose constitutional rights are violated by persons acting under color of state law. The text of 1983 — which provides that 1983 defendants are "person[s] who, under color of [State law,]" subject any "other person" to a deprivation of a federal right — adequately explains why a tribe is not a person subject to suit under 1983. For tribes generally do not act under color of state law. But that text sheds no light on the question whether the tribe is an "other person" who may bring a 1983 suit when the tribe is the victim of a constitutional violation. The ordinary meaning of the word "person" as used in federal statutes,1 as well as the specific remedial purpose of 1983, support the conclusion that a tribe should be able to invoke the protections of the statute if its constitutional rights are violated.2 In this case, however, the Tribe's allegations do not state a cause of action under 1983. The execution of the warrant challenged in this case would unquestionably have been lawful if the casino had been the property of an ordinary commercial corporation. See ante, at 711 ("There is in this case no allegation that the County lacked probable cause or that the warrant was otherwise defective"). Thus, the Tribe rests its case entirely on its claim that, as a sovereign, it should be accorded a special immunity that private casinos do not enjoy. See That sort of claim to special privileges, which is based entirely on the Tribe's sovereign status, is not one for which the 1983 remedy was enacted. Accordingly, while I agree with the Court that the judgment should be set aside, I do not join the Court's opinion. Notes: 1 The Dictionary Act, which was passed just two months before 1983 and was designed to supply rules of construction for all legislation, provided that "the word `person' may extend and be applied to bodies politic and corporate." Act of Feb. 25, 1871, 2, 2 Our holding that a State is not a "person" within 1983 is fully consistent with this view. Will rested on "the ordinary rule of statutory construction that if Congress intends to alter the `usual constitutional balance between the States and the Federal Government,' it must make its intention to do so `unmistakably clear in the language of the statute.' Atascadero State ; see also Pennhurst State School and 4 U.S. 89," Ibid |
Justice Blackmun | majority | false | Daubert v. Merrell Dow Pharmaceuticals, Inc. | 1993-06-28T00:00:00 | null | https://www.courtlistener.com/opinion/112903/daubert-v-merrell-dow-pharmaceuticals-inc/ | https://www.courtlistener.com/api/rest/v3/clusters/112903/ | 1,993 | 1992-114 | 2 | 9 | 0 | In this case we are called upon to determine the standard for admitting expert scientific testimony in a federal trial.
I
Petitioners Jason Daubert and Eric Schuller are minor children born with serious birth defects. They and their parents sued respondent in California state court, alleging that the birth defects had been caused by the mothers' ingestion of Bendectin, a prescription antinausea drug marketed by respondent. Respondent removed the suits to federal court on diversity grounds.
After extensive discovery, respondent moved for summary judgment, contending that Bendectin does not cause birth defects in humans and that petitioners would be unable to come forward with any admissible evidence that it does. In support of its motion, respondent submitted an affidavit of Steven H. Lamm, physician and epidemiologist, who is a well-credentialed expert on the risks from exposure to various chemical substances.[1] Doctor Lamm stated that he had reviewed all the literature on Bendectin and human birth defectsmore than 30 published studies involving over 130,000 patients. No study had found Bendectin to be a human teratogen (i. e., a substance capable of causing malformations in fetuses). On the basis of this review, Doctor Lamm concluded that maternal use of Bendectin during the first trimester of pregnancy has not been shown to be a risk factor for human birth defects.
*583 Petitioners did not (and do not) contest this characterization of the published record regarding Bendectin. Instead, they responded to respondent's motion with the testimony of eight experts of their own, each of whom also possessed impressive credentials.[2] These experts had concluded that Bendectin can cause birth defects. Their conclusions were based upon "in vitro" (test tube) and "in vivo" (live) animal studies that found a link between Bendectin and malformations; pharmacological studies of the chemical structure of Bendectin that purported to show similarities between the structure of the drug and that of other substances known to cause birth defects; and the "reanalysis" of previously published epidemiological (human statistical) studies.
The District Court granted respondent's motion for summary judgment. The court stated that scientific evidence is admissible only if the principle upon which it is based is "`sufficiently established to have general acceptance in the field to which it belongs.' " 727 F. Supp. 570, 572 (SD Cal. 1989), quoting United States v. Kilgus, 571 F.2d 508, 510 (CA9 1978). The court concluded that petitioners' evidence did not meet this standard. Given the vast body of epidemiological data concerning Bendectin, the court held, expert opinion which is not based on epidemiological evidence *584 is not admissible to establish causation. 727 F. Supp., at 575. Thus, the animal-cell studies, live-animal studies, and chemical-structure analyses on which petitioners had relied could not raise by themselves a reasonably disputable jury issue regarding causation. Ibid. Petitioners' epidemiological analyses, based as they were on recalculations of data in previously published studies that had found no causal link between the drug and birth defects, were ruled to be inadmissible because they had not been published or subjected to peer review. Ibid.
The United States Court of Appeals for the Ninth Circuit affirmed. 951 F.2d 1128 (1991). Citing Frye v. United States, 54 Ohio App. D. C. 46, 47, 293 F. 1013, 1014 (1923), the court stated that expert opinion based on a scientific technique is inadmissible unless the technique is "generally accepted" as reliable in the relevant scientific community. 951 F.2d, at 1129-1130. The court declared that expert opinion based on a methodology that diverges "significantly from the procedures accepted by recognized authorities in the field . . . cannot be shown to be `generally accepted as a reliable technique.' " Id., at 1130, quoting United States v. Solomon, 753 F.2d 1522, 1526 (CA9 1985).
The court emphasized that other Courts of Appeals considering the risks of Bendectin had refused to admit reanalyses of epidemiological studies that had been neither published nor subjected to peer review. 951 F.2d, at 1130-1131. Those courts had found unpublished reanalyses "particularly problematic in light of the massive weight of the original published studies supporting [respondent's] position, all of which had undergone full scrutiny from the scientific community." Id., at 1130. Contending that reanalysis is generally accepted by the scientific community only when it is subjected to verification and scrutiny by others in the field, the Court of Appeals rejected petitioners' reanalyses as "unpublished, not subjected to the normal peer review process and generated solely for use in litigation." Id., at 1131. The *585 court concluded that petitioners' evidence provided an insufficient foundation to allow admission of expert testimony that Bendectin caused their injuries and, accordingly, that petitioners could not satisfy their burden of proving causation at trial.
We granted certiorari, 506 U.S. 914 (1992), in light of sharp divisions among the courts regarding the proper standard for the admission of expert testimony. Compare, e. g., United States v. Shorter, 257 U. S. App. D. C. 358, 363 364, 809 F.2d 54, 59-60 (applying the "general acceptance" standard), cert. denied, 484 U.S. 817 (1987), with DeLuca v. Merrell Dow Pharmaceuticals, Inc., 911 F.2d 941, 955 (CA3 1990) (rejecting the "general acceptance" standard).
II
A
In the 70 years since its formulation in the Frye case, the "general acceptance" test has been the dominant standard for determining the admissibility of novel scientific evidence at trial. See E. Green & C. Nesson, Problems, Cases, and Materials on Evidence 649 (1983). Although under increasing attack of late, the rule continues to be followed by a majority of courts, including the Ninth Circuit.[3]
The Frye test has its origin in a short and citation-free 1923 decision concerning the admissibility of evidence derived from a systolic blood pressure deception test, a crude precursor to the polygraph machine. In what has become a famous (perhaps infamous) passage, the then Court of Appeals for the District of Columbia described the device and its operation and declared:
"Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages *586 is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduc- tion is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs. " 54 Ohio App. D. C., at 47, 293 F., at 1014 (emphasis added).
Because the deception test had "not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made," evidence of its results was ruled inadmissible. Ibid.
The merits of the Frye test have been much debated, and scholarship on its proper scope and application is legion.[4]*587 Petitioners' primary attack, however, is not on the content but on the continuing authority of the rule. They contend that the Frye test was superseded by the adoption of the Federal Rules of Evidence.[5] We agree.
We interpret the legislatively enacted Federal Rules of Evidence as we would any statute. Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 163 (1988). Rule 402 provides the baseline:
"All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible."
"Relevant evidence" is defined as that which has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Rule 401. The Rules' basic standard of relevance thus is a liberal one.
Frye, of course, predated the Rules by half a century. In United States v. Abel, 469 U.S. 45 (1984), we considered the pertinence of background common law in interpreting the Rules of Evidence. We noted that the Rules occupy the field, id., at 49, but, quoting Professor Cleary, the Reporter, *588 explained that the common law nevertheless could serve as an aid to their application:
"`In principle, under the Federal Rules no common law of evidence remains. "All relevant evidence is admissible, except as otherwise provided . . . ." In reality, of course, the body of common law knowledge continues to exist, though in the somewhat altered form of a source of guidance in the exercise of delegated powers.' " Id., at 51-52.
We found the common-law precept at issue in the Abel case entirely consistent with Rule 402's general requirement of admissibility, and considered it unlikely that the drafters had intended to change the rule. Id., at 50-51. In Bourjaily v. United States, 483 U.S. 171 (1987), on the other hand, the Court was unable to find a particular common-law doctrine in the Rules, and so held it superseded.
Here there is a specific Rule that speaks to the contested issue. Rule 702, governing expert testimony, provides:
"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise."
Nothing in the text of this Rule establishes "general acceptance" as an absolute prerequisite to admissibility. Nor does respondent present any clear indication that Rule 702 or the Rules as a whole were intended to incorporate a "general acceptance" standard. The drafting history makes no mention of Frye, and a rigid "general acceptance" requirement would be at odds with the "liberal thrust" of the Federal Rules and their "general approach of relaxing the traditional barriers to `opinion' testimony." Beech Aircraft Corp. v. Rainey, 488 U. S., at 169 (citing Rules 701 to 705). See also Weinstein, Rule 702 of the Federal Rules of Evidence is *589 Sound; It Should Not Be Amended, 138 F. R. D. 631 (1991) ("The Rules were designed to depend primarily upon lawyer-adversaries and sensible triers of fact to evaluate conflicts"). Given the Rules' permissive backdrop and their inclusion of a specific rule on expert testimony that does not mention "general acceptance," the assertion that the Rules somehow assimilated Frye is unconvincing. Frye made "general acceptance" the exclusive test for admitting expert scientific testimony. That austere standard, absent from, and incompatible with, the Federal Rules of Evidence, should not be applied in federal trials.[6]
B
That the Frye test was displaced by the Rules of Evidence does not mean, however, that the Rules themselves place no limits on the admissibility of purportedly scientific evidence.[7] Nor is the trial judge disabled from screening such evidence. To the contrary, under the Rules the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.
The primary locus of this obligation is Rule 702, which clearly contemplates some degree of regulation of the subjects and theories about which an expert may testify. "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue" an expert "may testify thereto. " (Emphasis added.) The subject of an expert's testimony must *590 be "scientific .. . knowledge."[8] The adjective "scientific" implies a grounding in the methods and procedures of science. Similarly, the word "knowledge" connotes more than subjective belief or unsupported speculation. The term "applies to any body of known facts or to any body of ideas inferred from such facts or accepted as truths on good grounds." Webster's Third New International Dictionary 1252 (1986). Of course, it would be unreasonable to conclude that the subject of scientific testimony must be "known" to a certainty; arguably, there are no certainties in science. See, e. g., Brief for Nicolaas Bloembergen et al. as Amici Curiae 9 ("Indeed, scientists do not assert that they know what is immutably `true'they are committed to searching for new, temporary, theories to explain, as best they can, phenomena"); Brief for American Association for the Advancement of Science et al. as Amici Curiae 7-8 ("Science is not an encyclopedic body of knowledge about the universe. Instead, it represents a process for proposing and refining theoretical explanations about the world that are subject to further testing and refinement" (emphasis in original)). But, in order to qualify as "scientific knowledge," an inference or assertion must be derived by the scientific method. Proposed testimony must be supported by appropriate validationi. e., "good grounds," based on what is known. In short, the requirement that an expert's testimony pertain to "scientific knowledge" establishes a standard of evidentiary reliability.[9]
*591 Rule 702 further requires that the evidence or testimony "assist the trier of fact to understand the evidence or to determine a fact in issue." This condition goes primarily to relevance. "Expert testimony which does not relate to any issue in the case is not relevant and, ergo, non-helpful." 3 Weinstein & Berger ¶ 702[02], p. 702-18. See also United States v. Downing, 753 F.2d 1224, 1242 (CA3 1985) ("An additional consideration under Rule 702and another aspect of relevancyis whether expert testimony proffered in the case is sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute"). The consideration has been aptly described by Judge Becker as one of "fit." Ibid. "Fit" is not always obvious, and scientific validity for one purpose is not necessarily scientific validity for other, unrelated purposes. See Starrs, Frye v. United States Restructured and Revitalized: A Proposal to Amend Federal Evidence Rule 702, 26 Jurimetrics J. 249, 258 (1986). The study of the phases of the moon, for example, may provide valid scientific "knowledge" about whether a certain night was dark, and if darkness is a fact in issue, the knowledge will assist the trier of fact. However (absent creditable grounds supporting such a link), evidence that the moon was full on a certain night will not assist the trier of fact in determining whether an individual was unusually likely to have behaved irrationally on that night. Rule 702's "helpfulness" *592 standard requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility.
That these requirements are embodied in Rule 702 is not surprising. Unlike an ordinary witness, see Rule 701, an expert is permitted wide latitude to offer opinions, including those that are not based on firsthand knowledge or observation. See Rules 702 and 703. Presumably, this relaxation of the usual requirement of firsthand knowledgea rule which represents "a `most pervasive manifestation' of the common law insistence upon `the most reliable sources of information,' " Advisory Committee's Notes on Fed. Rule Evid. 602, 28 U.S. C. App., p. 755 (citation omitted)is premised on an assumption that the expert's opinion will have a reliable basis in the knowledge and experience of his discipline.
C
Faced with a proffer of expert scientific testimony, then, the trial judge must determine at the outset, pursuant to Rule 104(a),[10] whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue.[11] This entails a preliminary assessment of whether the reasoning or methodology *593 underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue. We are confident that federal judges possess the capacity to undertake this review. Many factors will bear on the inquiry, and we do not presume to set out a definitive checklist or test. But some general observations are appropriate.
Ordinarily, a key question to be answered in determining whether a theory or technique is scientific knowledge that will assist the trier of fact will be whether it can be (and has been) tested. "Scientific methodology today is based on generating hypotheses and testing them to see if they can be falsified; indeed, this methodology is what distinguishes science from other fields of human inquiry." Green 645. See also C. Hempel, Philosophy of Natural Science 49 (1966) ("[T]he statements constituting a scientific explanation must be capable of empirical test"); K. Popper, Conjectures and Refutations: The Growth of Scientific Knowledge 37 (5th ed. 1989) ("[T]he criterion of the scientific status of a theory is its falsifiability, or refutability, or testability") (emphasis deleted).
Another pertinent consideration is whether the theory or technique has been subjected to peer review and publication. Publication (which is but one element of peer review) is not a sine qua non of admissibility; it does not necessarily correlate with reliability, see S. Jasanoff, The Fifth Branch: Science Advisors as Policymakers 61-76 (1990), and in some instances well-grounded but innovative theories will not have been published, see Horrobin, The Philosophical Basis of Peer Review and the Suppression of Innovation, 263 JAMA 1438 (1990). Some propositions, moreover, are too particular, too new, or of too limited interest to be published. But submission to the scrutiny of the scientific community is a component of "good science," in part because it increases the likelihood that substantive flaws in methodology will be detected. See J. Ziman, Reliable Knowledge: An Exploration *594 of the Grounds for Belief in Science 130-133 (1978); Relman & Angell, How Good Is Peer Review?, 321 New Eng. J. Med. 827 (1989). The fact of publication (or lack thereof) in a peer reviewed journal thus will be a relevant, though not dispositive, consideration in assessing the scientific validity of a particular technique or methodology on which an opinion is premised.
Additionally, in the case of a particular scientific technique, the court ordinarily should consider the known or potential rate of error, see, e. g., United States v. Smith, 869 F.2d 348, 353-354 (CA7 1989) (surveying studies of the error rate of spectrographic voice identification technique), and the existence and maintenance of standards controlling the technique's operation, see United States v. Williams, 583 F.2d 1194, 1198 (CA2 1978) (noting professional organization's standard governing spectrographic analysis), cert. denied, 439 U.S. 1117 (1979).
Finally, "general acceptance" can yet have a bearing on the inquiry. A "reliability assessment does not require, although it does permit, explicit identification of a relevant scientific community and an express determination of a particular degree of acceptance within that community." United States v. Downing, 753 F. 2d, at 1238. See also 3 Weinstein & Berger ¶ 702[03], pp. 702-41 to 702-42. Widespread acceptance can be an important factor in ruling particular evidence admissible, and "a known technique which has been able to attract only minimal support within the community," Downing, 753 F. 2d, at 1238, may properly be viewed with skepticism.
The inquiry envisioned by Rule 702 is, we emphasize, a flexible one.[12] Its overarching subject is the scientific validityand *595 thus the evidentiary relevance and reliabilityof the principles that underlie a proposed submission. The focus, of course, must be solely on principles and methodology, not on the conclusions that they generate.
Throughout, a judge assessing a proffer of expert scientific testimony under Rule 702 should also be mindful of other applicable rules. Rule 703 provides that expert opinions based on otherwise inadmissible hearsay are to be admitted only if the facts or data are "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject." Rule 706 allows the court at its discretion to procure the assistance of an expert of its own choosing. Finally, Rule 403 permits the exclusion of relevant evidence "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury . . . ." Judge Weinstein has explained: "Expert evidence can be both powerful and quite misleading because of the difficulty in evaluating it. Because of this risk, the judge in weighing possible prejudice against probative force under Rule 403 of the present rules exercises more control over experts than over lay witnesses." Weinstein, 138 F. R. D., at 632.
III
We conclude by briefly addressing what appear to be two underlying concerns of the parties and amici in this case. Respondent expresses apprehension that abandonment of "general acceptance" as the exclusive requirement for admission will result in a "free-for-all" in which befuddled juries are confounded by absurd and irrational pseudoscientific assertions. *596 In this regard respondent seems to us to be overly pessimistic about the capabilities of the jury and of the adversary system generally. Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence. See Rock v. Arkansas, 483 U.S. 44, 61 (1987). Additionally, in the event the trial court concludes that the scintilla of evidence presented supporting a position is insufficient to allow a reasonable juror to conclude that the position more likely than not is true, the court remains free to direct a judgment, Fed. Rule Civ. Proc. 50(a), and likewise to grant summary judgment, Fed. Rule Civ. Proc. 56. Cf., e. g., Turpin v. Merrell Dow Pharmaceuticals, Inc., 959 F.2d 1349 (CA6) (holding that scientific evidence that provided foundation for expert testimony, viewed in the light most favorable to plaintiffs, was not sufficient to allow a jury to find it more probable than not that defendant caused plaintiff's injury), cert. denied, 506 U.S. 826 (1992); Brock v. Merrell Dow Pharmaceuticals, Inc., 874 F.2d 307 (CA5 1989) (reversing judgment entered on jury verdict for plaintiffs because evidence regarding causation was insufficient), modified, 884 F.2d 166 (CA5 1989), cert. denied, 494 U.S. 1046 (1990); Green 680-681. These conventional devices, rather than wholesale exclusion under an uncompromising "general acceptance" test, are the appropriate safeguards where the basis of scientific testimony meets the standards of Rule 702.
Petitioners and, to a greater extent, their amici exhibit a different concern. They suggest that recognition of a screening role for the judge that allows for the exclusion of "invalid" evidence will sanction a stifling and repressive scientific orthodoxy and will be inimical to the search for truth. See, e. g., Brief for Ronald Bayer et al. as Amici Curiae. It is true that open debate is an essential part of both legal and scientific analyses. Yet there are important differences between the quest for truth in the courtroom and the quest *597 for truth in the laboratory. Scientific conclusions are subject to perpetual revision. Law, on the other hand, must resolve disputes finally and quickly. The scientific project is advanced by broad and wide-ranging consideration of a multitude of hypotheses, for those that are incorrect will eventually be shown to be so, and that in itself is an advance. Conjectures that are probably wrong are of little use, however, in the project of reaching a quick, final, and binding legal judgmentoften of great consequenceabout a particular set of events in the past. We recognize that, in practice, a gatekeeping role for the judge, no matter how flexible, inevitably on occasion will prevent the jury from learning of authentic insights and innovations. That, nevertheless, is the balance that is struck by Rules of Evidence designed not for the exhaustive search for cosmic understanding but for the particularized resolution of legal disputes.[13]
IV
To summarize: "General acceptance" is not a necessary precondition to the admissibility of scientific evidence under the Federal Rules of Evidence, but the Rules of Evidence especially Rule 702do assign to the trial judge the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand. Pertinent evidence based on scientifically valid principles will satisfy those demands.
The inquiries of the District Court and the Court of Appeals focused almost exclusively on "general acceptance," as gauged by publication and the decisions of other courts. Accordingly, *598 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.
Chief Justice Rehnquist, with whom Justice Stevens joins, concurring in part and dissenting in part.
The petition for certiorari in this case presents two questions: first, whether the rule of Frye v. United States, 54 Ohio App. D. C. 46, 293 F. 1013 (1923), remains good law after the enactment of the Federal Rules of Evidence; and second, if Frye remains valid, whether it requires expert scientific testimony to have been subjected to a peer review process in order to be admissible. The Court concludes, correctly in my view, that the Frye rule did not survive the enactment of the Federal Rules of Evidence, and I therefore join Parts I and IIA of its opinion. The second question presented in the petition for certiorari necessarily is mooted by this holding, but the Court nonetheless proceeds to construe Rules 702 and 703 very much in the abstract, and then offers some "general observations." Ante, at 593.
"General observations" by this Court customarily carry great weight with lower federal courts, but the ones offered here suffer from the flaw common to most such observationsthey are not applied to deciding whether particular testimony was or was not admissible, and therefore they tend to be not only general, but vague and abstract. This is particularly unfortunate in a case such as this, where the ultimate legal question depends on an appreciation of one or more bodies of knowledge not judicially noticeable, and subject to different interpretations in the briefs of the parties and their amici. Twenty-two amicus briefs have been filed in the case, and indeed the Court's opinion contains no fewer than 37 citations to amicus briefs and other secondary sources.
*599 The various briefs filed in this case are markedly different from typical briefs, in that large parts of them do not deal with decided cases or statutory languagethe sort of material we customarily interpret. Instead, they deal with definitions of scientific knowledge, scientific method, scientific validity, and peer reviewin short, matters far afield from the expertise of judges. This is not to say that such materials are not useful or even necessary in deciding how Rule 702 should be applied; but it is to say that the unusual subject matter should cause us to proceed with great caution in deciding more than we have to, because our reach can so easily exceed our grasp.
But even if it were desirable to make "general observations" not necessary to decide the questions presented, I cannot subscribe to some of the observations made by the Court. In Part IIB, the Court concludes that reliability and relevancy are the touchstones of the admissibility of expert testimony. Ante, at 590-592. Federal Rule of Evidence 402 provides, as the Court points out, that "[e]vidence which is not relevant is not admissible." But there is no similar reference in the Rule to "reliability." The Court constructs its argument by parsing the language "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, . . . an expert . . . may testify thereto . . . ." Fed. Rule Evid. 702. It stresses that the subject of the expert's testimony must be "scientific . . . knowledge," and points out that "scientific" "implies a grounding in the methods and procedures of science" and that the word "knowledge" "connotes more than subjective belief or unsupported speculation." Ante, at 590. From this it concludes that "scientific knowledge" must be "derived by the scientific method." Ibid. Proposed testimony, we are told, must be supported by "appropriate validation." Ibid. Indeed, in footnote 9, the Court decides that "[i]n a case involving scientific evidence, evidentiary *600 reliability will be based upon scientific validity. " Ante, at 591, n. 9 (emphasis in original).
Questions arise simply from reading this part of the Court's opinion, and countless more questions will surely arise when hundreds of district judges try to apply its teaching to particular offers of expert testimony. Does all of this dicta apply to an expert seeking to testify on the basis of "technical or other specialized knowledge"the other types of expert knowledge to which Rule 702 appliesor are the "general observations" limited only to "scientific knowledge"? What is the difference between scientific knowledge and technical knowledge; does Rule 702 actually contemplate that the phrase "scientific, technical, or other specialized knowledge" be broken down into numerous subspecies of expertise, or did its authors simply pick general descriptive language covering the sort of expert testimony which courts have customarily received? The Court speaks of its confidence that federal judges can make a "preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue." Ante, at 592-593. The Court then states that a "key question" to be answered in deciding whether something is "scientific knowledge" "will be whether it can be (and has been) tested." Ante, at 593. Following this sentence are three quotations from treatises, which not only speak of empirical testing, but one of which states that the "`criterion of the scientific status of a theory is its falsifiability, or refutability, or testability.' " Ibid.
I defer to no one in my confidence in federal judges; but I am at a loss to know what is meant when it is said that the scientific status of a theory depends on its "falsifiability," and I suspect some of them will be, too.
I do not doubt that Rule 702 confides to the judge some gatekeeping responsibility in deciding questions of the admissibility of proffered expert testimony. But I do not think *601 it imposes on them either the obligation or the authority to become amateur scientists in order to perform that role. I think the Court would be far better advised in this case to decide only the questions presented, and to leave the further development of this important area of the law to future cases.
| In this case we are called upon to determine the standard for admitting expert scientific testimony in a federal trial. I Petitioners Jason Daubert and Eric Schuller are minor children born with serious birth defects. They and their parents sued respondent in California state court, alleging that the birth defects had been caused by the mothers' ingestion of Bendectin, a prescription antinausea drug marketed by respondent. Respondent removed the suits to federal court on diversity grounds. After extensive discovery, respondent moved for summary judgment, contending that Bendectin does not cause birth defects in humans and that petitioners would be unable to come forward with any admissible evidence that it does. In support of its motion, respondent submitted an affidavit of Steven H. Lamm, physician and epidemiologist, who is a well-credentialed expert on the risks from exposure to various chemical substances.[1] Doctor Lamm stated that he had reviewed all the literature on Bendectin and human birth defectsmore than 30 published studies involving over 130,000 patients. No study had found Bendectin to be a human teratogen (i. e., a substance capable of causing malformations in fetuses). On the basis of this review, Doctor Lamm concluded that maternal use of Bendectin during the first trimester of pregnancy has not been shown to be a risk factor for human birth defects. *583 Petitioners did not (and do not) contest this characterization of the published record regarding Bendectin. Instead, they responded to respondent's motion with the testimony of eight experts of their own, each of whom also possessed impressive credentials.[2] These experts had concluded that Bendectin can cause birth defects. Their conclusions were based upon "in vitro" (test tube) and "in vivo" (live) animal studies that found a link between Bendectin and malformations; pharmacological studies of the chemical structure of Bendectin that purported to show similarities between the structure of the drug and that of other substances known to cause birth defects; and the "reanalysis" of previously published epidemiological (human statistical) studies. The District Court granted respondent's motion for summary judgment. The court stated that scientific evidence is admissible only if the principle upon which it is based is "`sufficiently established to have general acceptance in the field to which it belongs.' " quoting United The court concluded that petitioners' evidence did not meet this standard. Given the vast body of epidemiological data concerning Bendectin, the court held, expert opinion which is not based on epidemiological evidence *584 is not admissible to establish Thus, the animal-cell studies, live-animal studies, and chemical-structure analyses on which petitioners had relied could not raise by themselves a reasonably disputable jury issue regarding Petitioners' epidemiological analyses, based as they were on recalculations of data in previously published studies that had found no causal link between the drug and birth defects, were ruled to be inadmissible because they had not been published or subjected to peer The United States Court of Appeals for the Ninth Circuit affirmed. Citing the court stated that expert opinion based on a scientific technique is inadmissible unless the technique is "generally accepted" as reliable in the relevant scientific -1130. The court declared that expert opinion based on a methodology that diverges "significantly from the procedures accepted by recognized authorities in the field cannot be shown to be `generally accepted as a reliable technique.' " quoting United The court emphasized that other Courts of Appeals considering the risks of Bendectin had refused to admit reanalyses of epidemiological studies that had been neither published nor subjected to peer 951 F.2d, -1131. Those courts had found unpublished reanalyses "particularly problematic in light of the massive weight of the original published studies supporting [respondent's] position, all of which had undergone full scrutiny from the scientific " Contending that reanalysis is generally accepted by the scientific community only when it is subjected to verification and scrutiny by others in the field, the Court of Appeals rejected petitioners' reanalyses as "unpublished, not subjected to the normal peer review process and generated solely for use in litigation." The *585 court concluded that petitioners' evidence provided an insufficient foundation to allow admission of expert testimony that Bendectin caused their injuries and, accordingly, that petitioners could not satisfy their burden of proving causation at trial. We granted certiorari, in light of sharp divisions among the courts regarding the proper standard for the admission of expert testimony. Compare, e. g., United (applying the "general acceptance" standard), cert. denied, with II A In the 70 years since its formulation in the Frye case, the "general acceptance" test has been the dominant standard for determining the admissibility of novel scientific evidence at trial. See E. Green & C. Nesson, Problems, Cases, and Materials on Evidence 649 (1983). Although under increasing attack of late, the rule continues to be followed by a majority of courts, including the Ninth Circuit.[3] The Frye test has its origin in a short and citation-free decision concerning the admissibility of evidence derived from a systolic blood pressure deception test, a crude precursor to the polygraph machine. In what has become a famous (perhaps infamous) passage, the then Court of Appeals for the District of Columbia described the device and its operation and declared: "Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages *586 is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduc- tion is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs. " 54 Ohio App. D. C., at 47, 293 F., at Because the deception test had "not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made," evidence of its results was ruled inadmissible. The merits of the Frye test have been much debated, and scholarship on its proper scope and application is legion.[4]*587 Petitioners' primary attack, however, is not on the content but on the continuing authority of the rule. They contend that the Frye test was superseded by the adoption of the Federal Rules of Evidence.[5] We agree. We interpret the legislatively enacted Federal Rules of Evidence as we would any statute. Beech Aircraft Rule 402 provides the baseline: "All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible." "Relevant evidence" is defined as that which has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Rule 401. The Rules' basic standard of relevance thus is a liberal one. Frye, of course, predated the Rules by half a century. In United we considered the pertinence of background common law in interpreting the Rules of Evidence. We noted that the Rules occupy the field, but, quoting Professor Cleary, the Reporter, *588 explained that the common law nevertheless could serve as an aid to their application: "`In principle, under the Federal Rules no common law of evidence remains. "All relevant evidence is admissible, except as otherwise provided" In reality, of course, the body of common law knowledge continues to exist, though in the somewhat altered form of a source of guidance in the exercise of delegated powers.' " We found the common-law precept at issue in the Abel case entirely consistent with Rule 402's general requirement of admissibility, and considered it unlikely that the drafters had intended to change the rule. In on the other hand, the Court was unable to find a particular common-law doctrine in the Rules, and so held it superseded. Here there is a specific Rule that speaks to the contested issue. Rule 702, governing expert testimony, provides: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." Nothing in the text of this Rule establishes "general acceptance" as an absolute prerequisite to admissibility. Nor does respondent present any clear indication that Rule 702 or the Rules as a whole were intended to incorporate a "general acceptance" standard. The drafting history makes no mention of Frye, and a rigid "general acceptance" requirement would be at odds with the "liberal thrust" of the Federal Rules and their "general approach of relaxing the traditional barriers to `opinion' testimony." Beech Aircraft (citing Rules 701 to 705). See also Weinstein, Rule 702 of the Federal Rules of Evidence is *589 Sound; It Should Not Be Amended, 138 F. R. D. 631 ("The Rules were designed to depend primarily upon lawyer-adversaries and sensible triers of fact to evaluate conflicts"). Given the Rules' permissive backdrop and their inclusion of a specific rule on expert testimony that does not mention "general acceptance," the assertion that the Rules somehow assimilated Frye is unconvincing. Frye made "general acceptance" the exclusive test for admitting expert scientific testimony. That austere standard, absent from, and incompatible with, the Federal Rules of Evidence, should not be applied in federal trials.[6] B That the Frye test was displaced by the Rules of Evidence does not mean, however, that the Rules themselves place no limits on the admissibility of purportedly scientific evidence.[7] Nor is the trial judge disabled from screening such evidence. To the contrary, under the Rules the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable. The primary locus of this obligation is Rule 702, which clearly contemplates some degree of regulation of the subjects and theories about which an expert may testify. "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue" an expert "may testify thereto. " (Emphasis added.) The subject of an expert's testimony must *590 be "scientific knowledge."[8] The adjective "scientific" implies a grounding in the methods and procedures of science. Similarly, the word "knowledge" connotes more than subjective belief or unsupported speculation. The term "applies to any body of known facts or to any body of ideas inferred from such facts or accepted as truths on good grounds." Webster's Third New International Dictionary 1252 Of course, it would be unreasonable to conclude that the subject of scientific testimony must be "known" to a certainty; arguably, there are no certainties in science. See, e. g., Brief for Nicolaas Bloembergen et al. as Amici Curiae 9 ("Indeed, scientists do not assert that they know what is immutably `true'they are committed to searching for new, temporary, theories to explain, as best they can, phenomena"); Brief for American Association for the Advancement of Science et al. as Amici Curiae 7-8 ("Science is not an encyclopedic body of knowledge about the universe. Instead, it represents a process for proposing and refining theoretical explanations about the world that are subject to further testing and refinement" (emphasis in original)). But, in order to qualify as "scientific knowledge," an inference or assertion must be derived by the scientific method. Proposed testimony must be supported by appropriate validationi. e., "good grounds," based on what is known. In short, the requirement that an expert's testimony pertain to "scientific knowledge" establishes a standard of evidentiary reliability.[9] *591 Rule 702 further requires that the evidence or testimony "assist the trier of fact to understand the evidence or to determine a fact in issue." This condition goes primarily to relevance. "Expert testimony which does not relate to any issue in the case is not relevant and, ergo, non-helpful." 3 Weinstein & Berger ¶ 702[02], p. 702-18. See also United The consideration has been aptly described by Judge Becker as one of "fit." "Fit" is not always obvious, and scientific validity for one purpose is not necessarily scientific validity for other, unrelated purposes. See Starrs, Frye v. United States Restructured and Revitalized: A Proposal to Amend Federal Evidence Rule 702, The study of the phases of the moon, for example, may provide valid scientific "knowledge" about whether a certain night was dark, and if darkness is a fact in issue, the knowledge will assist the trier of fact. However (absent creditable grounds supporting such a link), evidence that the moon was full on a certain night will not assist the trier of fact in determining whether an individual was unusually likely to have behaved irrationally on that night. Rule 702's "helpfulness" *592 standard requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility. That these requirements are embodied in Rule 702 is not surprising. Unlike an ordinary witness, see Rule 701, an expert is permitted wide latitude to offer opinions, including those that are not based on firsthand knowledge or observation. See Rules 702 and 703. Presumably, this relaxation of the usual requirement of firsthand knowledgea rule which represents "a `most pervasive manifestation' of the common law insistence upon `the most reliable sources of information,' " Advisory Committee's Notes on Fed. Rule Evid. 602, 28 U.S. C. App., p. 755 (citation omitted)is premised on an assumption that the expert's opinion will have a reliable basis in the knowledge and experience of his discipline. C Faced with a proffer of expert scientific testimony, then, the trial judge must determine at the outset, pursuant to Rule 104(a),[10] whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue.[11] This entails a preliminary assessment of whether the reasoning or methodology *593 underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue. We are confident that federal judges possess the capacity to undertake this Many factors will bear on the inquiry, and we do not presume to set out a definitive checklist or test. But some general observations are appropriate. Ordinarily, a key question to be answered in determining whether a theory or technique is scientific knowledge that will assist the trier of fact will be whether it can be (and has been) tested. "Scientific methodology today is based on generating hypotheses and testing them to see if they can be falsified; indeed, this methodology is what distinguishes science from other fields of human inquiry." Green 645. See also C. Hempel, Philosophy of Natural Science 49 (1966) ("[T]he statements constituting a scientific explanation must be capable of empirical test"); K. Popper, Conjectures and Refutations: The Growth of Scientific Knowledge 37 ("[T]he criterion of the scientific status of a theory is its falsifiability, or refutability, or testability") (emphasis deleted). Another pertinent consideration is whether the theory or technique has been subjected to peer review and publication. Publication (which is but one element of peer review) is not a sine qua non of admissibility; it does not necessarily correlate with reliability, see S. Jasanoff, The Fifth Branch: Science Advisors as Policymakers -76 and in some instances well-grounded but innovative theories will not have been published, see Horrobin, The Philosophical Basis of Peer Review and the Suppression of Innovation, Some propositions, moreover, are too particular, too new, or of too limited interest to be published. But submission to the scrutiny of the scientific community is a component of "good science," in part because it increases the likelihood that substantive flaws in methodology will be detected. See J. Ziman, Reliable Knowledge: An Exploration *594 of the Grounds for Belief in Science 130-133 ; Relman & Angell, How Good Is Peer Review?, The fact of publication (or lack thereof) in a peer reviewed journal thus will be a relevant, though not dispositive, consideration in assessing the scientific validity of a particular technique or methodology on which an opinion is premised. Additionally, in the case of a particular scientific technique, the court ordinarily should consider the known or potential rate of error, see, e. g., United and the existence and maintenance of standards controlling the technique's operation, see United cert. denied, Finally, "general acceptance" can yet have a bearing on the inquiry. A "reliability assessment does not require, although it does permit, explicit identification of a relevant scientific community and an express determination of a particular degree of acceptance within that " United 753 F. 2d, at 1238. See also 3 Weinstein & Berger ¶ 702[03], pp. 702-41 to 702-42. Widespread acceptance can be an important factor in ruling particular evidence admissible, and "a known technique which has been able to attract only minimal support within the community," Downing, 753 F. 2d, at 1238, may properly be viewed with skepticism. The inquiry envisioned by Rule 702 is, we emphasize, a flexible one.[12] Its overarching subject is the scientific validityand *595 thus the evidentiary relevance and reliabilityof the principles that underlie a proposed submission. The focus, of course, must be solely on principles and methodology, not on the conclusions that they generate. Throughout, a judge assessing a proffer of expert scientific testimony under Rule 702 should also be mindful of other applicable rules. Rule 703 provides that expert opinions based on otherwise inadmissible hearsay are to be admitted only if the facts or data are "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject." Rule 706 allows the court at its discretion to procure the assistance of an expert of its own choosing. Finally, Rule 403 permits the exclusion of relevant evidence "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury" Judge Weinstein has explained: "Expert evidence can be both powerful and quite misleading because of the difficulty in evaluating it. Because of this risk, the judge in weighing possible prejudice against probative force under Rule 403 of the present rules exercises more control over experts than over lay witnesses." Weinstein, 138 F. R. D., at 632. III We conclude by briefly addressing what appear to be two underlying concerns of the parties and amici in this case. Respondent expresses apprehension that abandonment of "general acceptance" as the exclusive requirement for admission will result in a "free-for-all" in which befuddled juries are confounded by absurd and irrational pseudoscientific assertions. *596 In this regard respondent seems to us to be overly pessimistic about the capabilities of the jury and of the adversary system generally. Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence. See Additionally, in the event the trial court concludes that the scintilla of evidence presented supporting a position is insufficient to allow a reasonable juror to conclude that the position more likely than not is true, the court remains free to direct a judgment, Fed. Rule Civ. Proc. 50(a), and likewise to grant summary judgment, Fed. Rule Civ. Proc. 56. Cf., e. g., (CA6) (holding that scientific evidence that provided foundation for expert testimony, viewed in the light most favorable to plaintiffs, was not sufficient to allow a jury to find it more probable than not that defendant caused plaintiff's injury), cert. denied, ; modified, cert. denied, ; Green 680-681. These conventional devices, rather than wholesale exclusion under an uncompromising "general acceptance" test, are the appropriate safeguards where the basis of scientific testimony meets the standards of Rule 702. Petitioners and, to a greater extent, their amici exhibit a different concern. They suggest that recognition of a screening role for the judge that allows for the exclusion of "invalid" evidence will sanction a stifling and repressive scientific orthodoxy and will be inimical to the search for truth. See, e. g., Brief for Ronald Bayer et al. as Amici Curiae. It is true that open debate is an essential part of both legal and scientific analyses. Yet there are important differences between the quest for truth in the courtroom and the quest *597 for truth in the laboratory. Scientific conclusions are subject to perpetual revision. Law, on the other hand, must resolve disputes finally and quickly. The scientific project is advanced by broad and wide-ranging consideration of a multitude of hypotheses, for those that are incorrect will eventually be shown to be so, and that in itself is an advance. Conjectures that are probably wrong are of little use, however, in the project of reaching a quick, final, and binding legal judgmentoften of great consequenceabout a particular set of events in the past. We recognize that, in practice, a gatekeeping role for the judge, no matter how flexible, inevitably on occasion will prevent the jury from learning of authentic insights and innovations. That, nevertheless, is the balance that is struck by Rules of Evidence designed not for the exhaustive search for cosmic understanding but for the particularized resolution of legal disputes.[13] IV To summarize: "General acceptance" is not a necessary precondition to the admissibility of scientific evidence under the Federal Rules of Evidence, but the Rules of Evidence especially Rule 702do assign to the trial judge the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand. Pertinent evidence based on scientifically valid principles will satisfy those demands. The inquiries of the District Court and the Court of Appeals focused almost exclusively on "general acceptance," as gauged by publication and the decisions of other courts. Accordingly, *598 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. Chief Justice Rehnquist, with whom Justice Stevens joins, concurring in part and dissenting in part. The petition for certiorari in this case presents two questions: first, whether the rule of remains good law after the enactment of the Federal Rules of Evidence; and second, if Frye remains valid, whether it requires expert scientific testimony to have been subjected to a peer review process in order to be admissible. The Court concludes, correctly in my view, that the Frye rule did not survive the enactment of the Federal Rules of Evidence, and I therefore join Parts I and IIA of its opinion. The second question presented in the petition for certiorari necessarily is mooted by this holding, but the Court nonetheless proceeds to construe Rules 702 and 703 very much in the abstract, and then offers some "general observations." Ante, at 593. "General observations" by this Court customarily carry great weight with lower federal courts, but the ones offered here suffer from the flaw common to most such observationsthey are not applied to deciding whether particular testimony was or was not admissible, and therefore they tend to be not only general, but vague and abstract. This is particularly unfortunate in a case such as this, where the ultimate legal question depends on an appreciation of one or more bodies of knowledge not judicially noticeable, and subject to different interpretations in the briefs of the parties and their amici. Twenty-two amicus briefs have been filed in the case, and indeed the Court's opinion contains no fewer than 37 citations to amicus briefs and other secondary sources. *599 The various briefs filed in this case are markedly different from typical briefs, in that large parts of them do not deal with decided cases or statutory languagethe sort of material we customarily interpret. Instead, they deal with definitions of scientific knowledge, scientific method, scientific validity, and peer reviewin short, matters far afield from the expertise of judges. This is not to say that such materials are not useful or even necessary in deciding how Rule 702 should be applied; but it is to say that the unusual subject matter should cause us to proceed with great caution in deciding more than we have to, because our reach can so easily exceed our grasp. But even if it were desirable to make "general observations" not necessary to decide the questions presented, I cannot subscribe to some of the observations made by the Court. In Part IIB, the Court concludes that reliability and relevancy are the touchstones of the admissibility of expert testimony. Ante, at 590-592. Federal Rule of Evidence 402 provides, as the Court points out, that "[e]vidence which is not relevant is not admissible." But there is no similar reference in the Rule to "reliability." The Court constructs its argument by parsing the language "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, an expert may testify thereto" Fed. Rule Evid. 702. It stresses that the subject of the expert's testimony must be "scientific knowledge," and points out that "scientific" "implies a grounding in the methods and procedures of science" and that the word "knowledge" "connotes more than subjective belief or unsupported speculation." Ante, at 590. From this it concludes that "scientific knowledge" must be "derived by the scientific method." Proposed testimony, we are told, must be supported by "appropriate validation." Indeed, in footnote 9, the Court decides that "[i]n a case involving scientific evidence, evidentiary *600 reliability will be based upon scientific validity. " Ante, at 591, n. 9 (emphasis in original). Questions arise simply from reading this part of the Court's opinion, and countless more questions will surely arise when hundreds of district judges try to apply its teaching to particular offers of expert testimony. Does all of this dicta apply to an expert seeking to testify on the basis of "technical or other specialized knowledge"the other types of expert knowledge to which Rule 702 appliesor are the "general observations" limited only to "scientific knowledge"? What is the difference between scientific knowledge and technical knowledge; does Rule 702 actually contemplate that the phrase "scientific, technical, or other specialized knowledge" be broken down into numerous subspecies of expertise, or did its authors simply pick general descriptive language covering the sort of expert testimony which courts have customarily received? The Court speaks of its confidence that federal judges can make a "preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue." Ante, at 592-593. The Court then states that a "key question" to be answered in deciding whether something is "scientific knowledge" "will be whether it can be (and has been) tested." Ante, at 593. Following this sentence are three quotations from treatises, which not only speak of empirical testing, but one of which states that the "`criterion of the scientific status of a theory is its falsifiability, or refutability, or testability.' " I defer to no one in my confidence in federal judges; but I am at a loss to know what is meant when it is said that the scientific status of a theory depends on its "falsifiability," and I suspect some of them will be, too. I do not doubt that Rule 702 confides to the judge some gatekeeping responsibility in deciding questions of the admissibility of proffered expert testimony. But I do not think *601 it imposes on them either the obligation or the authority to become amateur scientists in order to perform that role. I think the Court would be far better advised in this case to decide only the questions presented, and to leave the further development of this important area of the law to future cases. |
Justice Blackmun | majority | false | Quinn v. Millsap | 1989-06-15T00:00:00 | null | https://www.courtlistener.com/opinion/112294/quinn-v-millsap/ | https://www.courtlistener.com/api/rest/v3/clusters/112294/ | 1,989 | 1988-113 | 2 | 9 | 0 | The Constitution of the State of Missouri provides that the governments of the city of St. Louis and St. Louis County may be reorganized by a vote of the electorate of the city and county upon a plan of reorganization drafted by a "board of freeholders." Appellants contend that this provision violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution because it requires that every member of this official board own real property. The Supreme Court of Missouri, without disputing appellants' premise that ownership of real property is a prerequisite for appointment to the board of freeholders, ruled that "the Equal Protection Clause has no relevancy here" because the board "exercises no general governmental powers." 757 S.W.2d 591, 595 (1988). This ruling reflects a significant misreading of our precedents, and, accordingly, we reverse.
I
In 1987, pursuant to Art. VI, § 30, of the Missouri Constitution,[1] a sufficient number of voters signed petitions "to *97 establish a board of St. Louis area property owners (freeholders)" to consider the reorganization of "governmental structures and responsibilities" for the city and county. App. 20, 30. As a result, under § 30, the city's mayor and the county executive were required each to appoint nine members to this board, and the Governor was required to appoint one.[2]
After the mayor had chosen nine individuals based on several criteria, including a history of community service and demonstrated leadership ability, he was informed by the city's counsel that ownership of real property was a prerequisite for board membership. One of the persons selected by the mayor, the Reverend Paul C. Reinert,[3] did not own real property. He was removed from the mayor's list and replaced with an appointee who satisfied the real-property requirement.
The county executive similarly was told by the county's counsel that real property ownership was a necessary condition for board membership. The Governor also considered *98 real property ownership as a necessary qualification. Thus, all 19 members appointed to the board of freeholders in 1987 owned real property, as was inevitable given the prevailing belief that § 30 required this result.
In November 1987, appellants Robert J. Quinn, Jr., and Patricia J. Kampsen filed in the United States District Court for the Western District of Missouri a class-action complaint on behalf of all Missouri voters who did not own real property. Appellants claimed that § 30 violated the Equal Protection Clause of the Fourteenth Amendment on its face, insofar as it required ownership of real property in order to serve on the board that was to consider proposals for reorganizing the St. Louis city and county governments. Quinn v. Missouri, 681 F. Supp. 1422, 1433 (1988). Appellants also claimed that § 30 violated the Equal Protection Clause as applied, because in this instance "appointment to the board [of freeholders] was actually limited to those who were ascertained to be owners of real property." Ibid. Relying on this Court's decisions in Turner v. Fouche, 396 U.S. 346 (1970), and Chappelle v. Greater Baton Rouge Airport Dist., 431 U.S. 159 (1977), appellants asserted that the requirement that members of the board own real property whether contained within § 30 itself or resulting from a misinterpretation of that provision is not rationally related to any legitimate state purpose.
Appellants' federal-court complaint, as amended, named as defendants the mayor, the county executive, the Governor, and the members of the board of freeholders, as well as the State of Missouri itself. These defendants, all appellees here, in turn sued appellants in a Missouri Circuit Court for a declaratory judgment that § 30 does not violate the Federal Constitution. Appellants counterclaimed in the state court, raising the same claims they presented in their federal-court complaint.
*99 Once the property qualification issue became embroiled in litigation, the official view of § 30 changed. Whereas the mayor, the county executive, and the Governor all had assumed during the appointment process that ownership of real property was a prerequisite for board membership, they (together with the other appellees) have argued in court that the use of the term "freeholder" in § 30 contrary to its generally accepted meaning does not entail a condition of property ownership. Because § 30(a) states that "a board of freeholders" shall consist of "nine . . . electors of the city and nine electors of the county and one . . . elector of some other county," appellees contend that the only qualification necessary for appointment to a board of freeholders is that one be an "elector" of a relevant jurisdiction.
Based on their contention that the meaning of "freeholder" in § 30 is an unsettled question of state law, appellees urged the Federal District Court to abstain from adjudicating the merits of appellants' complaint while the state-court proceeding was pending. The District Court refused to abstain, 681 F. Supp., at 1427-1432, finding appellees' interpretation of the term "freeholder" to be "strained at best," id., at 1430, and contrary both to the generally recognized meaning of the term and to its use in Missouri decisional law. Reaching the merits of appellants' constitutional claim, the court agreed with appellants that Turner and Chappelle required the conclusion that § 30 (construed to contain a property requirement) violates the Equal Protection Clause. 681 F. Supp., at 1433-1436. The Federal Court of Appeals, after a preliminary order, see 839 F.2d 425 (CA8 1988), reversed, holding that the District Court should have abstained. App. to Juris. Statement 61; 855 F.2d 856 (CA8 1988).
Thereafter, in an unpublished memorandum, the State Circuit Court adopted appellees' interpretation of § 30. Although in property law the term "freeholder" means someone *100 with a fee or similar estate in land, the court reasoned that in "public law" the phrase "board of freeholders" was equivalent to "board of commissioners." App. to Juris. Statement 17-18. Additionally, the court suggested that, notwithstanding Turner and Chappelle, § 30 might not violate the Equal Protection Clause even if it imposes a real-property-ownership requirement. Speculating about a possible rational basis for this, the court suggested that land ownership might enhance the work of the board because one of the issues it faces is whether to change the boundaries between the city and the county. App. to Juris. Statement 19. The court's discussion of the Equal Protection Clause remained tentative, however, and the court did not specifically explain the constitutionality of § 30 as applied to the present board of freeholders. Nonetheless, in an order accompanying its memorandum, the state court entered a declaratory judgment that § 30 is valid both on its face and as applied to the present board. Id., at 20-21.[4]
The Missouri Supreme Court affirmed this judgment, but relied exclusively on its interpretation of the Equal Protection Clause. The court did not address the argument that § 30 does not impose a property-ownership requirement, except to say: "We recognize membership on the Board of Freeholders was restricted to owners of real property." 757 S.W.2d, at 595. The court continued: "However, we hold that the composition of the Board of Freeholders does not violate the Equal Protection Clause because the Board of Freeholders does not exercise general governmental powers." Ibid. Thus, the Missouri Supreme Court rejected both the facial and as-applied challenges to § 30 based on its belief that the Equal Protection Clause was inapplicable to the board of freeholders.
*101 Contesting the Missouri Supreme Court's interpretation of the Equal Protection Clause, appellants filed the appeal now before us, and we noted probable jurisdiction. 489 U.S. 1009 (1989).[5]
II
Appellees dispute this Court's power to hear the appeal, offering four separate arguments in an attempt to avoid a decision on the merits. First, in an effort to rely on the adequate and independent state ground doctrine, see Fox Film Corp. v. Muller, 296 U.S. 207, 210 (1935), appellees would persuade us that the Missouri Supreme Court actually accepted their interpretation of § 30. They point to the following passage from that court's opinion:
"Following certification of the petitions, section 30 required both the mayor of St. Louis and the county supervisor of St. Louis County to appoint nine `electors' to the Board. In addition the Governor of Missouri was required to appoint one elector to the Board." 757 S.W.2d, at 592 (footnote omitted).
This passage, in the introductory section of the opinion, simply repeats the language of § 30 itself. See n. 1, supra. It cannot reasonably be considered as a holding that "freeholder" means no more than "elector" and that ownership of real property is not a prerequisite for sitting on the board of freeholders. We are not convinced that the Missouri Supreme Court interpreted § 30 as urged by appellees.
Rather, as explained in Part I, supra, the judgment of the Missouri Supreme Court rests solely on its belief that "the Equal Protection Clause has no relevancy" to this case. 757 S.W.2d, at 595. In these circumstances, there can be no dispute about our power to consider the federal issue decided by the state court: "Where the state court does not decide *102 against a petitioner or appellant upon an independent state ground, but deeming the federal question to be before it, actually entertains and decides that question adversely to the federal right asserted, this Court has jurisdiction to review the judgment if, as here, it is a final judgment." Indiana ex rel. Anderson v. Brand, 303 U.S. 95, 98 (1938). "That the [state] court might have, but did not, invoke state law does not foreclose jurisdiction here." Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 568 (1977).[6]
Appellees' remaining three jurisdictional arguments are rather surprising given the fact that it was they who brought this declaratory judgment action against appellants. Appellees argue that the validity of § 30 under the Equal Protection Clause is a nonjusticiable political question, although they filed this lawsuit seeking a judicial determination of § 30's validity under the Federal Constitution. See App. 6. In any event, their political question argument that the Guarantee Clause[7] precludes review of the equal protection issue was expressly rejected in Baker v. Carr, 369 U.S. 186, 228 (1962).
Next, appellees argue that appellants lack Article III standing to bring this appeal, although appellees stated in their petition for a declaratory judgment that a "controversy" exists between "adverse" parties involving "legally protectable interests." App. 5. While appellees now might wish to repudiate this view, we have no doubt that the appeal "retains *103 the essentials of an adversary proceeding, involving a real, not a hypothetical, controversy," Nashville, C. & St. L. R. Co. v. Wallace, 288 U.S. 249, 264 (1933), and therefore qualifies as a "Cas[e]" for the purposes of Article III, § 2. See also ASARCO Inc. v. Kadish, 490 U.S. 605 (1989). Indeed, in Turner v. Fouche, we specifically held that a person who does not own real property has Article III standing to challenge under the Equal Protection Clause a state-law requirement that one own real property in order to serve on a particular government board. 396 U.S., at 361-362, n. 23. Given Turner, appellants necessarily have standing to appeal the Missouri Supreme Court's determination that, even if Missouri law requires that members of the board of freeholders own real property, the Equal Protection Clause is inapplicable.[8]
Finally, appellees contend that an adjudication of appellants' appeal would interfere with the power of executive officials to make discretionary appointments, although, again, they filed this state-court action seeking a declaration of the legal validity of § 30 and the present board of freeholders. In any event, the argument is frivolous. Appellees rely on dicta in two cases, in which this Court suggested that federal district courts might lack the authority to order executive officials to make discretionary appointments in a particular way. See Mayor of Philadelphia v. Educational Equality League, 415 U.S. 605, 615 (1974); Carter v. Jury Comm'n of *104 Greene County, 396 U.S. 320, 338 (1970). Whatever the limits of a federal court's power to remedy violations of the Equal Protection Clause, however, those limits are plainly irrelevant when this Court is asked to review a state-court judgment that no violation of the Equal Protection Clause has occurred or, as here, that the Equal Protection Clause is inapplicable to the state action in question. When a state supreme court denies the existence of a federal right and rests its decision on that basis, this Court unquestionably has jurisdiction to review the federal issue decided by the state court. To suggest otherwise would contradict principles laid down in the Judiciary Act of 1789, 1 Stat. 73, 85, and settled since Martin v. Hunter's Lessee, 1 Wheat. 304 (1816).
Satisfied of our jurisdiction over this appeal, we turn to the merits.
III
A
In Turner v. Fouche, supra, the Court applied the Equal Protection Clause to a requirement that members of a local school board own real property and held the requirement unconstitutional because it was not rationally related to any legitimate state interest. 396 U.S., at 362-364. Subsequently, we applied the holding in Turner to strike down a requirement of local-property ownership for membership on a local airport commission. Chappelle v. Greater Baton Rouge Airport Dist., 431 U.S. 159 (1977), summarily rev'g 329 So. 2d 810 (La. App. 1976). Here, the Missouri Supreme Court held that "Turner does not control . . . because Turner dealt with a unit of local government which had general governmental powers." 757 S.W. 2d., at 594. The Missouri Supreme Court, instead, turned to our decisions in Ball v. James, 451 U.S. 355 (1981), Salyer Land Co. v. Tulare Lake Basin Water Storage Dist., 410 U.S. 719 (1973), and Associated Enterprises, Inc. v. Toltec Watershed Improvement Dist., 410 U.S. 743 (1973), believing those decisions to support its conclusion that "the Equal Protection Clause has no *105 relevancy here." 757 S.W. 2d, at 595. They do not support that conclusion.
In each of these cases, the Court sustained the constitutionality of a water-district voting scheme based on land ownership. But the Court did not reach that result by ruling, as the Missouri Supreme Court held here, that the Equal Protection Clause was irrelevant because of the kind of functions performed by the water-district officials. On the contrary, the Court expressly applied equal protection analysis and concluded that the voting qualifications at issue passed constitutional scrutiny. Ball, 451 U. S., at 371; Salyer, 410 U. S., at 730-731; Toltec, 410 U. S., at 744. Precisely because the water-district cases applied equal protection analysis, they cannot stand for the proposition that the Equal Protection Clause is inapplicable "when the local unit of government in question [has no] general governmental powers." 757 S.W. 2d, at 595. Thus, the Missouri Supreme Court erred in thinking that the three water-district cases allowed it to avoid an application of the Equal Protection Clause.
In holding the board of freeholders exempt from the constraints of the Equal Protection Clause, the Missouri Supreme Court also relied on the fact that the "Board of Freeholders serves only to recommend a plan of reorganization to the voters of St. Louis City and St. Louis County" and does not enact any laws of its own. Ibid. But this fact cannot immunize the board of freeholders from equal protection scrutiny. As this Court in Turner explained, the Equal Protection Clause protects the "right to be considered for public service without the burden of invidiously discriminatory disqualifications." 396 U.S., at 362. Membership on the board of freeholders is a form of public service, even if the board only recommends a proposal to the electorate and does not enact laws directly. Thus, the Equal Protection Clause protects appellants' right to be considered for appointment to the board without the burden of "invidiously discriminatory disqualifications."
*106 The rationale of the Missouri Supreme Court's contrary decision would render the Equal Protection Clause inapplicable even to a requirement that all members of the board be white males. This result, and the reasoning that leads to it, are obviously untenable. Thus, we conclude that it is incorrect to say, as that court did, that the Equal Protection Clause does not apply to the board of freeholders because the electorate votes on its proposals and it "does not exercise general governmental powers." 757 S.W. 2d, at 595. The board in this case like the school board in Turner and the airport commission in Chappelle is subject to the constraints of the Equal Protection Clause.
B
The question, of course, remains whether the land-ownership requirement in this particular case passes or fails equal protection scrutiny. We could remand this question to the Missouri Supreme Court, but there is no good reason to delay the resolution of this issue any further. The parties have briefed and argued the issue throughout this litigation, first in federal court, then in state court, and now in this Court. Cf. Revere v. Massachusetts General Hospital, 463 U.S. 239, 244, n. 6 (1983); Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 470-471, n. 14 (1981). Indeed, there already has been an adjudication of the merits of this issue by the United States District Court. Quinn v. Missouri, 681 F. Supp., at 1433-1436.[9] Moreover, the resolution of this issue *107 is straightforward: it is a form of invidious discrimination to require land ownership of all appointees to a body authorized to propose reorganization of local government. We need apply no more than the rationality review articulated in Turner to reach this conclusion.[10]
In their brief, appellees offer two justifications for a real-property requirement in this case. First, they contend that owners of real estate have a "first-hand knowledge of the value of good schools, sewer systems and the other problems and amenities of urban life." Brief for Appellees 41 (footnote omitted). Second, they assert that a real-property owner "has a tangible stake in the long term future of his area." Ibid. These two arguments, however, were precisely the ones that this Court rejected in Turner itself.
*108 As to the first, the Court explained that an ability to understand the issues concerning one's community does not depend on ownership of real property. "It cannot be seriously urged that a citizen in all other respects qualified to sit on a school board must also own real property if he is to participate responsibly in educational decisions." 396 U.S., at 363-364. Similarly indefensible is the proposition that someone otherwise qualified to sit on the board that proposes a reorganization of St. Louis government must be removed from consideration just because he does not own real property.
The Court in Turner also squarely rejected appellees' second argument by recognizing that persons can be attached to their community without owning real property. "However reasonable the assumption that those who own realty do possess such an attachment, [the State] may not rationally presume that that quality is necessarily wanting in all citizens of the county whose estates are less than freehold." Id., at 364. Thus, Turner plainly forecloses Missouri's reliance on this justification for a land-ownership requirement.[11]
At oral argument, counsel for appellees adopted the suggestion of the State Circuit Court that a land-ownership requirement might be justifiable in this case because the board of freeholders considers issues that may relate to land. Tr. of Oral Arg. 39.[12] Of course, the airport commission in Chappelle may have made decisions affecting real estate in its vicinity. Nonetheless, we held in Chappelle that excluding from service on the airport commission anyone who did not own local property was unconstitutional under Turner. Thus, the mere fact that the board of freeholders considers *109 land-use issues cannot suffice to sustain a land-ownership requirement in this case.
Moreover, the board of freeholders here is unlike any of the governmental bodies at issue in the three water-district cases. Whereas it was rational for the States in those cases to limit voting rights to landowners, Ball, 451 U. S., at 371, the "constitutionally relevant fact" there was "that all water delivered by [those districts was] distributed according to land ownership," id., at 367. The purpose of the board of freeholders, however, is not so directly linked with land ownership. Cf. id., at 357 (emphasizing "the peculiarly narrow function of [the] local government body" in Ball and its "special relationship" to the class of landowners). Even if the board of freeholders considers land-use issues, the scope of its mandate is far more encompassing: it has the power to draft and submit a plan to reorganize the entire governmental structure of St. Louis city and county. The work of the board of freeholders thus affects all citizens of the city and county, regardless of land ownership. Consequently, Missouri cannot entirely exclude from eligibility for appointment to this board all persons who do not own real property, regardless of their other qualifications and their demonstrated commitment to their community.
In sum, we cannot agree with appellees that under the Equal Protection Clause, as previously construed by this Court, landowners alone may be eligible for appointment to a body empowered to propose a wholesale revision of local government. "Whatever objectives" Missouri may wish "to obtain by [a] `freeholder' requirement must be secured, in this instance at least, by means more finely tailored to achieve the desired goal." Turner, 396 U. S., at 364. Accordingly, a land-ownership requirement is unconstitutional here, just as it was in Turner and in Chappelle.
The judgment of the Missouri Supreme Court is reversed.
It is so ordered.
| The Constitution of the State of provides that the governments of the city of St. Louis and St. Louis County may be reorganized by a vote of the electorate of the city and county upon a plan of reorganization drafted by a "board of freeholders." Appellants contend that this provision violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution because it requires that every member of this official board own real property. The Supreme Court of without disputing appellants' premise that ownership of real property is a prerequisite for appointment to the board of freeholders, ruled that "the Equal Protection Clause has no relevancy here" because the board "exercises no general governmental powers." This ruling reflects a significant misreading of our precedents, and, accordingly, we reverse. n 7, pursuant to Art. V, 30, of the Constitution,[] a sufficient number of voters signed petitions "to *97 establish a board of St. Louis area property owners (freeholders)" to consider the reorganization of "governmental structures and responsibilities" for the city and county. App. 20, 30. As a result, under 30, the city's mayor and the county executive were required each to appoint nine members to this board, and the Governor was required to appoint one.[2] After the mayor had chosen nine individuals based on several criteria, including a history of community service and demonstrated leadership ability, he was informed by the city's counsel that ownership of real property was a prerequisite for board membership. One of the persons selected by the mayor, the Reverend Paul C. Reinert,[3] did not own real property. He was removed from the mayor's list and replaced with an appointee who satisfied the real-property requirement. The county executive similarly was told by the county's counsel that real property ownership was a necessary condition for board membership. The Governor also considered * real property ownership as a necessary qualification. Thus, all 9 members appointed to the board of freeholders in 7 owned real property, as was inevitable given the prevailing belief that 30 required this result. n November 7, appellants Robert J. Quinn, Jr., and Patricia J. Kampsen filed in the United States District Court for the Western District of a class-action complaint on behalf of all voters who did not own real property. Appellants claimed that 30 violated the Equal Protection Clause of the Fourteenth Amendment on its face, insofar as it required ownership of real property in order to serve on the board that was to consider proposals for reorganizing the St. Louis city and county governments. Appellants also claimed that 30 violated the Equal Protection Clause as applied, because in this instance "appointment to the board [of freeholders] was actually limited to those who were ascertained to be owners of real property." Relying on this Court's decisions in and appellants asserted that the requirement that members of the board own real property whether contained within 30 itself or resulting from a misinterpretation of that provision is not rationally related to any legitimate state purpose. Appellants' federal-court complaint, as amended, named as defendants the mayor, the county executive, the Governor, and the members of the board of freeholders, as well as the State of itself. These defendants, all appellees here, in turn sued appellants in a Circuit Court for a declaratory judgment that 30 does not violate the Federal Constitution. Appellants counterclaimed in the state court, raising the same claims they presented in their federal-court complaint. *99 Once the property qualification issue became embroiled in litigation, the official view of 30 changed. Whereas the mayor, the county executive, and the Governor all had assumed during the appointment process that ownership of real property was a prerequisite for board membership, they (together with the other appellees) have argued in court that the use of the term "freeholder" in 30 contrary to its generally accepted meaning does not entail a condition of property ownership. Because 30(a) states that "a board of freeholders" shall consist of "nine electors of the city and nine electors of the county and one elector of some other county," appellees contend that the only qualification necessary for appointment to a board of freeholders is that one be an "elector" of a relevant jurisdiction. Based on their contention that the meaning of "freeholder" in 30 is an unsettled question of state law, appellees urged the Federal District Court to from adjudicating the merits of appellants' complaint while the state-court proceeding was pending. The District Court refused to -432, finding appellees' interpretation of the term "freeholder" to be "strained at best," and contrary both to the generally recognized meaning of the term and to its use in decisional law. Reaching the merits of appellants' constitutional claim, the court agreed with appellants that and Chappelle required the conclusion that 30 (construed to contain a property requirement) violates the Equal Protection 68 F. Supp., at -436. The Federal Court of Appeals, after a preliminary order, see reversed, holding that the District Court should have ed. App. to Juris. Statement 6; Thereafter, in an unpublished memorandum, the State Circuit Court adopted appellees' interpretation of 30. Although in property law the term "freeholder" means someone *00 with a fee or similar estate in land, the court reasoned that in "public law" the phrase "board of freeholders" was equivalent to "board of commissioners." App. to Juris. Statement 7-8. Additionally, the court suggested that, notwithstanding and Chappelle, 30 might not violate the Equal Protection Clause even if it imposes a real-property-ownership requirement. Speculating about a possible rational basis for this, the court suggested that land ownership might enhance the work of the board because one of the issues it faces is whether to change the boundaries between the city and the county. App. to Juris. Statement 9. The court's discussion of the Equal Protection Clause remained tentative, however, and the court did not specifically explain the constitutionality of 30 as applied to the present board of freeholders. Nonetheless, in an order accompanying its memorandum, the state court entered a declaratory judgment that 30 is valid both on its face and as applied to the present[4] The Supreme Court affirmed this judgment, but relied exclusively on its interpretation of the Equal Protection The court did not address the argument that 30 does not impose a property-ownership requirement, except to say: "We recognize membership on the Board of Freeholders was restricted to owners of real property." 757 S.W.2d, at The court continued: "However, we hold that the composition of the Board of Freeholders does not violate the Equal Protection Clause because the Board of Freeholders does not exercise general governmental powers." Thus, the Supreme Court rejected both the facial and as-applied challenges to 30 based on its belief that the Equal Protection Clause was inapplicable to the board of freeholders. *0 Contesting the Supreme Court's interpretation of the Equal Protection Clause, appellants filed the appeal now before us, and we noted probable jurisdiction.[5] Appellees dispute this Court's power to hear the appeal, offering four separate arguments in an attempt to avoid a decision on the merits. First, in an effort to rely on the adequate and independent state ground doctrine, see Fox Film appellees would persuade us that the Supreme Court actually accepted their interpretation of 30. They point to the following passage from that court's opinion: "Following certification of the petitions, section 30 required both the mayor of St. Louis and the county supervisor of St. Louis County to appoint nine `electors' to the Board. n addition the Governor of was required to appoint one elector to the Board." This passage, in the introductory section of the opinion, simply repeats the language of 30 itself. See n. t cannot reasonably be considered as a holding that "freeholder" means no more than "elector" and that ownership of real property is not a prerequisite for sitting on the board of freeholders. We are not convinced that the Supreme Court interpreted 30 as urged by appellees. Rather, as explained in Part the judgment of the Supreme Court rests solely on its belief that "the Equal Protection Clause has no relevancy" to this 757 S.W.2d, at n these circumstances, there can be no dispute about our power to consider the federal issue decided by the state court: "Where the state court does not decide *02 against a petitioner or appellant upon an independent state ground, but deeming the federal question to be before it, actually entertains and decides that question adversely to the federal right asserted, this Court has jurisdiction to review the judgment if, as here, it is a final judgment." ndiana ex rel. (938). "That the [state] court might have, but did not, invoke state law does not foreclose jurisdiction here."[6] Appellees' remaining three jurisdictional arguments are rather surprising given the fact that it was they who brought this declaratory judgment action against appellants. Appellees argue that the validity of 30 under the Equal Protection Clause is a nonjusticiable political question, although they filed this lawsuit seeking a judicial determination of 30's validity under the Federal Constitution. See App. 6. n any event, their political question argument that the Guarantee Clause[7] precludes review of the equal protection issue was expressly rejected in 369 U.S. 86, (962). Next, appellees argue that appellants lack Article standing to bring this appeal, although appellees stated in their petition for a declaratory judgment that a "controversy" exists between "adverse" parties involving "legally protectable interests." App. 5. While appellees now might wish to repudiate this view, we have no doubt that the appeal "retains *03 the essentials of an adversary proceeding, involving a real, not a hypothetical, controversy," Nashville, C. & St. L. R. (933), and therefore qualifies as a "Cas[e]" for the purposes of Article 2. See also ASARCO nc. v. Kadish, ndeed, in we specifically held that a person who does not own real property has Article standing to challenge under the Equal Protection Clause a state-law requirement that one own real property in order to serve on a particular government 396 U.S., at 36-362, n. 23. Given appellants necessarily have standing to appeal the Supreme Court's determination that, even if law requires that members of the board of freeholders own real property, the Equal Protection Clause is inapplicable.[8] Finally, appellees contend that an adjudication of appellants' appeal would interfere with the power of executive officials to make discretionary appointments, although, again, they filed this state-court action seeking a declaration of the legal validity of 30 and the present board of freeholders. n any event, the argument is frivolous. Appellees rely on dicta in two cases, in which this Court suggested that federal district courts might lack the authority to order executive officials to make discretionary appointments in a particular way. See Mayor of 45 U.S. 605, 65 (974); Carter v. Jury Comm'n of *04 Greene County, Whatever the limits of a federal court's power to remedy violations of the Equal Protection Clause, however, those limits are plainly irrelevant when this Court is asked to review a state-court judgment that no violation of the Equal Protection Clause has occurred or, as here, that the Equal Protection Clause is inapplicable to the state action in question. When a state supreme court denies the existence of a federal right and rests its decision on that basis, this Court unquestionably has jurisdiction to review the federal issue decided by the state court. To suggest otherwise would contradict principles laid down in the Judiciary Act of 789, Stat. 73, 85, and settled since Wheat. 304 (86). Satisfied of our jurisdiction over this appeal, we turn to the merits. A n the Court applied the Equal Protection Clause to a requirement that members of a local school board own real property and held the requirement unconstitutional because it was not rationally related to any legitimate state -364. Subsequently, we applied the holding in to strike down a requirement of local-property ownership for membership on a local airport commission. summarily rev'g 329 So. 2d 80 (La. App. 976). Here, the Supreme Court held that " does not control because dealt with a unit of local government which had general governmental powers." 757 S.W. 2d., at 594. The Supreme Court, instead, turned to our decisions in 45 U.S. 355 (), Land 40 U.S. 79 (973), and Associated Enterprises, nc. v. Watershed mprovement Dist., 40 U.S. 743 (973), believing those decisions to support its conclusion that "the Equal Protection Clause has no *05 relevancy here." 757 S.W. 2d, at They do not support that conclusion. n each of these cases, the Court sustained the constitutionality of a water-district voting scheme based on land ownership. But the Court did not reach that result by ruling, as the Supreme Court held here, that the Equal Protection Clause was irrelevant because of the kind of functions performed by the water-district officials. On the contrary, the Court expressly applied equal protection analysis and concluded that the voting qualifications at issue passed constitutional scrutiny. 45 U. S., at 37; 40 U. S., at 730-73; 40 U. S., at 744. Precisely because the water-district cases applied equal protection analysis, they cannot stand for the proposition that the Equal Protection Clause is inapplicable "when the local unit of government in question [has no] general governmental powers." 757 S.W. 2d, at Thus, the Supreme Court erred in thinking that the three water-district cases allowed it to avoid an application of the Equal Protection n holding the board of freeholders exempt from the constraints of the Equal Protection Clause, the Supreme Court also relied on the fact that the "Board of Freeholders serves only to recommend a plan of reorganization to the voters of St. Louis City and St. Louis County" and does not enact any laws of its own. But this fact cannot immunize the board of freeholders from equal protection scrutiny. As this Court in explained, the Equal Protection Clause protects the "right to be considered for public service without the burden of invidiously discriminatory disqualifications." Membership on the board of freeholders is a form of public service, even if the board only recommends a proposal to the electorate and does not enact laws directly. Thus, the Equal Protection Clause protects appellants' right to be considered for appointment to the board without the burden of "invidiously discriminatory disqualifications." *06 The rationale of the Supreme Court's contrary decision would render the Equal Protection Clause inapplicable even to a requirement that all members of the board be white males. This result, and the reasoning that leads to it, are obviously untenable. Thus, we conclude that it is incorrect to say, as that court did, that the Equal Protection Clause does not apply to the board of freeholders because the electorate votes on its proposals and it "does not exercise general governmental powers." 757 S.W. 2d, at The board in this case like the school board in and the airport commission in Chappelle is subject to the constraints of the Equal Protection B The question, of course, remains whether the land-ownership requirement in this particular case passes or fails equal protection scrutiny. We could remand this question to the Supreme Court, but there is no good reason to delay the resolution of this issue any further. The parties have briefed and argued the issue throughout this litigation, first in federal court, then in state court, and now in this Court. Cf. (3); 470-47, n. 4 (). ndeed, there already has been an adjudication of the merits of this issue by the United States District Court. 68 F. Supp., at -436.[9] Moreover, the resolution of this issue *07 is straightforward: it is a form of invidious discrimination to require land ownership of all appointees to a body authorized to propose reorganization of local government. We need apply no more than the rationality review articulated in to reach this conclusion.[0] n their brief, appellees offer two justifications for a real-property requirement in this First, they contend that owners of real estate have a "first-hand knowledge of the value of good schools, sewer systems and the other problems and amenities of urban life." Brief for Appellees 4 Second, they assert that a real-property owner "has a tangible stake in the long term future of his area." These two arguments, however, were precisely the ones that this Court rejected in itself. *08 As to the first, the Court explained that an ability to understand the issues concerning one's community does not depend on ownership of real property. "t cannot be seriously urged that a citizen in all other respects qualified to sit on a school board must also own real property if he is to participate responsibly in educational decisions." -364. Similarly indefensible is the proposition that someone otherwise qualified to sit on the board that proposes a reorganization of St. Louis government must be removed from consideration just because he does not own real property. The Court in also squarely rejected appellees' second argument by recognizing that persons can be attached to their community without owning real property. "However reasonable the assumption that those who own realty do possess such an attachment, [the State] may not rationally presume that that quality is necessarily wanting in all citizens of the county whose estates are less than freehold." Thus, plainly forecloses 's reliance on this justification for a land-ownership requirement.[] At oral argument, counsel for appellees adopted the suggestion of the State Circuit Court that a land-ownership requirement might be justifiable in this case because the board of freeholders considers issues that may relate to land. Tr. of Oral Arg. 39.[2] Of course, the airport commission in Chappelle may have made decisions affecting real estate in its vicinity. Nonetheless, we held in Chappelle that excluding from service on the airport commission anyone who did not own local property was unconstitutional under Thus, the mere fact that the board of freeholders considers *09 land-use issues cannot suffice to sustain a land-ownership requirement in this Moreover, the board of freeholders here is unlike any of the governmental bodies at issue in the three water-district cases. Whereas it was rational for the States in those cases to limit voting rights to landowners, 45 U. S., at 37, the "constitutionally relevant fact" there was "that all water delivered by [those districts was] distributed according to land ownership," The purpose of the board of freeholders, however, is not so directly linked with land ownership. Cf. (emphasizing "the peculiarly narrow function of [the] local government body" in and its "special relationship" to the class of landowners). Even if the board of freeholders considers land-use issues, the scope of its mandate is far more encompassing: it has the power to draft and submit a plan to reorganize the entire governmental structure of St. Louis city and county. The work of the board of freeholders thus affects all citizens of the city and county, regardless of land ownership. Consequently, cannot entirely exclude from eligibility for appointment to this board all persons who do not own real property, regardless of their other qualifications and their demonstrated commitment to their community. n sum, we cannot agree with appellees that under the Equal Protection Clause, as previously construed by this Court, landowners alone may be eligible for appointment to a body empowered to propose a wholesale revision of local government. "Whatever objectives" may wish "to obtain by [a] `freeholder' requirement must be secured, in this instance at least, by means more finely tailored to achieve the desired goal." 396 U. S., Accordingly, a land-ownership requirement is unconstitutional here, just as it was in and in Chappelle. The judgment of the Supreme Court is reversed. t is so ordered. |
Justice Ginsburg | dissenting | false | Carmell v. Texas | 2000-05-01T00:00:00 | null | https://www.courtlistener.com/opinion/118361/carmell-v-texas/ | https://www.courtlistener.com/api/rest/v3/clusters/118361/ | 2,000 | 1999-055 | 2 | 5 | 4 | The Court today holds that the amended version of Article 38.07 of the Texas Code of Criminal Procedure reduces the amount of proof necessary to support a sexual assault conviction, and that its retroactive application therefore violates the Ex Post Facto Clause. In so holding, the Court misreads both the Texas statute and our precedents concerning the Ex Post Facto Clause. Article 38.07 is not, as the Court would have it, most accurately characterized as a "sufficiency of the evidence rule"; it is in its essence an evidentiary provision dictating the circumstances under which the jury may credit victim testimony in sexual offense prosecutions. The amended version of Article 38.07 does nothing more than accord to certain victims of sexual offenses full testimonial stature, giving them the same undiminished competency to testify that Texas extends to witnesses generally in the State's judicial proceedings. Our precedents make clear that such a witness competency rule validly may be applied to offenses committed before its enactment. I therefore dissent.
*554 * * *
Petitioner Scott Leslie Carmell began sexually abusing his stepdaughter, "K. M.," in the spring of 1991, when K. M. was 13 years old. He continued to do so through March 1995. The specific question before the Court concerns Carmell's sexual assault on K. M. in June 1992, when K. M. was 14.[1] K. M. did not inform anyone about that assault or about any of Carmell's other sexual advances toward her until sometime around March 1995, when she told a friend and then her mother, Eleanor Alexander. Alexander went to the police, and Carmell was arrested and charged in a 15-count indictment.
Under Article 38.07 of the Texas Code of Criminal Procedure as it stood at the time of the assault, a conviction for sexual assault was supportable on the uncorroborated testimony of the victim if the victim was younger than 14 years old at the time of the offense. If the victim was 14 years old or older, however, the victim's testimony could support a conviction only if that testimony was corroborated by other evidence. One form of corroboration, specifically described in Article 38.07 itself, was known as "outcry": The victim's testimony could support a conviction if he or she had informed another person, other than the defendant, about the offense within six months of its occurrence. Tex. Code Crim. Proc. Ann., Art. 38.07 (Vernon 1983).
Article 38.07 was amended in 1993. Under the new version, which was in effect at the time of Carmell's trial, the victim's uncorroborated testimony can support a conviction as long as the victim was under 18 years of age at the time of the offense. Tex. Code Crim. Proc. Ann., Art. 38.07 (Vernon Supp. 2000). The corroboration requirement continues *555 in force for victims aged 18 or older, with a modified definition of outcry not material here. Thus, under the version of Article 38.07 in effect at the time of Carmell's trial but not the version in effect at the time of the offense, his conviction was supportable by the uncorroborated testimony of K. M. The new version of Article 38.07 was applied at Carmell's trial, and he was convicted.[2] Carmell argues that the application of the new version of Article 38.07 to his trial violated the Ex Post Facto Clause, U. S. Const., Art. I, § 10, cl. 1.
I
A proper understanding of Article 38.07 of the Texas Code of Criminal Procedure is central to this case. Accordingly, I turn first to the effect and purpose of that statute.
The effect of Article 38.07 in sexual offense prosecutions is plain. If the victim is of a certain age, the jury, in assessing whether the prosecution has met its burden of demonstrating guilt beyond a reasonable doubt, must give no weight to her testimony unless that testimony is corroborated, either by other evidence going directly to guilt or by "outcry."[3] For victims (such as K. M.) who were between the ages of 14 and *556 18 at the time of the offense, the 1993 amendment repealed this corroboration requirement. The amended version of Article 38.07 thus permits sexual assault victims between 14 and 18 to have their testimony considered by the jury in the same manner and with the same effect as that of witnesses generally in Texas prosecutions.
This sort of corroboration requirementstill embodied in Article 38.07 for victims aged 18 or olderis a common, if increasingly outmoded, rule of evidence. Its purpose is to rein in the admissibility of testimony the legislature has deemed insufficiently credible standing alone. Texas' requirement of corroboration or outcry, like similar provisions in other jurisdictions, is premised on a legislative judgment that accusations made by sexual assault victims above a certain age are not independently trustworthy. See Villareal v. State, 511 S.W.2d 500, 502 (Tex. Crim. App. 1974) ("The basis of this rule isthat the failure to make an outcry or promptly report the rape diminishes the credibility of the prosecutrix."); cf., e. g., Battle v. United States, 630 A.2d 211, 217 (D. C. 1993) (evidence of outcry "rebuts an implied charge of recent fabrication, which springs from some jurors' assumptions that sexual offense victims are generally lying and that the victim's failure to report the crime promptly is inconsistent with the victim's current statement that the assault occurred").
Legislatures in many States, including Texas, have enacted similar evidentiary provisions requiring corroboration for the testimony of other categories of witnesses, particularly accomplices. See, e. g., Tex. Code Crim. Proc. Ann., Art. 38.14 (Vernon Supp. 2000) ("A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed . . . .").Such provisionsgenerally on the wane but still in force in several Statesare, like Article 38.07, designed to ensure the credibility of the relevant witness. See, e. g., State v. Haugen, 448 N.W.2d 191, 194 *557 (N. D. 1989) ("The purpose of corroborating evidence is to show that accomplices are reliable witnesses and worthy of credit."); Holladay v. State, 709 S.W.2d 194, 196 (Tex. Crim. App. 1986) ("Because such a witness [i. e., an accomplice] is usually deemed to be corrupt, his testimony is always looked upon with suspicion."); Fleming v. State, 760 P.2d 208, 209 210 (Okla. Crim. App. 1988) ("The purpose behind the requirement of corroboration is to protect an accused from being falsely implicated by another criminal in the hope of clemency, a desire for revenge, or for any other reason.").
I make no judgment here as to the propriety of the Texas Legislature's decision to view the testimony of certain sexual assault victims in the same light as that of accomplices. Ex post facto analysis does not depend on an assessment of a statute's wisdom. For current purposes it suffices to note that Article 38.07's corroboration requirement rests on the same rationale that underpins accomplice corroboration requirements: the notion that a particular witness, because of his or her role in the events at issue, might not give trustworthy testimony. See Reed v. State, 991 S.W.2d 354, 361 (Tex. App. 1999) ("Generally speaking, the need to corroborate the testimony of a sexual assault victim stems from the notion that the victim, if over the age of consent, could be an accomplice rather than a victim."); Hernandez v.State, 651 S.W.2d 746, 751 (Tex. Crim. App. 1983) (concurring opinion adopted on rehearing) (Article 38.07's corroboration requirement "was meant to deal only with testimony of a victim of a sexual offense who, for one reason or another, was held to be an `accomplice witness' and, perforce, whose testimony must be corroborated.").
The history of Article 38.07 bears out the view that its focus has always been on the competency and credibility of the victim as witness. The origins of the statute could be traced to the fact that in Texas, "for many years a seduced female was an incompetent witness as a matter of law." Holladay, 709 S. W. 2d, at 200. See, e. g., Cole v. State, 40 *558 Tex. 147 (1874); see also Hernandez, 651 S. W. 2d, at 751-752 (tracing the current Article 38.07 to the earlier seduction victim competency rule). In 1891, this common-law disability was lifted by statute and replaced by a corroboration requirement: "In prosecutions for seduction . . . the female alleged to have been seduced shall be permitted to testify; but no conviction shall be had upon the testimony of the said female, unless the same is corroborated by other evidence tending to connect the defendant with the offense charged." Tex. Rev. Crim. Stat., Tit. 8, ch. 7, Art. 789 (1911). The application of this statute to offenses committed before its enactment was upheld by the Texas courts on the authority of Hopt v. Territory of Utah, 110 U.S. 574 (1884). See Mrous v. State, 31 Tex. Crim. App. 597, 21 S.W. 764 (1893). The corroboration requirement for seduction prosecutions, recodified in 1965 at Tex. Code Crim. Proc. Ann., Art. 38.07, remained in effect until 1973, when the entire 1925 Penal Code (including the offense of seduction) was repealed.
In 1975, Article 38.07 was enacted substantially in its present form. As revised, the article covered all sexual offenses in Chapter 21 of the Texas Penal Code; however, it contained no express exemption from the corroboration requirement for the testimony of the youngest victims. Tex. Code Crim. Proc. Ann., Art. 38.07 (Vernon 1979). The exemption for victims under the age of 14 was added in 1983, and extended in 1993 to cover those under the age of 18, as already described. As initially proposed, the 1993 change would have eliminated the corroboration/outcry requirement altogether. House Research Organization, Texas House of Representatives, Daily Floor Report 13 (Mar. 15, 1993), Lodging of Petitioner. Supporters of the proposal maintained that "[v]ictims in sexual assault cases are no more likely to fantasize or misconstrue the truth than the victims of most other crimes, which do not require corroboration of testimony or previous `outcry.' Juries can decide if a witness is credible. . . . Most states no longer require this type of corroboration; *559 neither should Texas." Id., at 14. The historical development of Article 38.07 reveals a progressive alleviation of restrictions on the competency of victim testimony, not a legislative emphasis on the quantum of evidence needed to convict.
The version of Article 38.07 applied at Carmell's trial was thus, in both effect and purpose, an evidentiary rule governing the weight that may be given to the testimony of sexual assault victims who had attained the age of 14. The Court's efforts to paint it as something more than that are detached from the statute's moorings and are consequently unpersuasive.
To begin with, it is beyond doubt that Article 38.07 does not establish an element of the offense. See Love v. State, 499 S.W.2d 108, 108 (Tex. Crim. App. 1973) ("[O]utcry is not one of the elements of the offense charged."). To convict a defendant of sexual assault in Texas today as before 1993, the prosecution need not introduce the victim's testimony at all, much less any corroboration of that testimony. The Court is therefore less than correct in asserting that "[u]nder the law in effect at the time the acts were committed, the prosecution's case was legally insufficient and petitioner was entitled to a judgment of acquittal, unless the State could produce both the victim's testimony and corroborative evidence." Ante, at 530. Under both the old and new versions of the statute, a conviction could be sustained on the testimony of a single third-party witness, on purely circumstantial evidence, or in any number of other waysso long as the admissible evidence presented is sufficient to prove all of the elements of the offense beyond a reasonable doubt.[4] And under either version of Article 38.07, of course, *560 the accused could be convicted, like any other defendant, on the basis of a guilty plea or a voluntary confession. Article 38.07, in other words, does not define "sexual assault proven by corroborated victim testimony" as a distinct offense from "sexual assault." Rather, the measure operates only to restrict the State's method of proving its case.[5]
And it does so without affecting in any way the burden of persuasion that the prosecution must satisfy to support a conviction. Under both the old and new versions of the statute, the applicable standard is proof beyond a reasonable doubt. The amendment in 1993 that repealed the corroboration requirement for victims between the ages of 14 and 18 did nothing to change that standard.
The Court recognizes that Article 38.07 does not affect the applicable burden of persuasion, see ante, at 539, but several times it asserts that the amended version of the statute "changed the quantum of evidence necessary to sustain a conviction," ante, at 530 (emphasis added). See also ante, at 531 (amended law "permitted petitioner to be convicted with less than the previously required quantum of evidence"); ante, at 532-533 (amended law "[r]educ[es] the quantum of evidence necessary to meet the burden of proof" (emphases added)). If by the word "quantum" the Court means to refer to the burden of persuasion, these statements are simply incorrect and contradict the Court's own acknowledgment. And if, as appears more likely, "quantum" refers to some required quantity or amount of proof, the Court is also wrong. The partial repeal of Article 38.07's corroboration requirement did not change the quantity of proof necessary to convict in every case, for the simple reason that Texas has never required the prosecution to introduce any particular *561 number of witnesses or items of proof to support a sexual assault conviction.[6]
The Court also declares several times that the amended version of Article 38.07 "subverts the presumption of innocence." See ante, at 532; see also ante, at 533, nn. 22, 23, 546. The phrase comes from Cummings v. Missouri, 4 Wall. 277 (1867), in which the Court struck down a series of post-Civil War amendments to the Missouri Constitution that imposed penalties on persons unable or unwilling to swear an oath that they had not aided the Confederacy. The amendments, the Court said in Cummings, "subvert the presumptions of innocence" because "[t]hey assume that the parties are guilty [and] . . . call upon [them] to establish their innocence" by swearing the oath. Id., at 328. Nothing of the kind is involved here. Article 38.07 did not impose a presumption of guilt on Carmell and then saddle him with the task of overcoming it. The burden of persuasion remained at all times with the State. See Tex. Code Crim. Proc. Ann., Art. 38.03 (Vernon Supp. 2000). Carmell's presumption of innocence is thus untouched by the current Article 38.07's recognition of K. M.'s full testimonial stature.
The Court places perhaps its greatest weight on the "sufficiency of the evidence" label, see ante, at 547-552, but the label will not stick. As just noted, Article 38.07 has never dictated what it takes in all cases, quantitatively or qualitatively, for evidence to be sufficient to convict. To the contrary, under both the old and new versions of the statute the *562 prosecution's admissible evidence will be sufficient to support a conviction if a rational factfinder presented with that evidence could find the defendant guilty beyond a reasonable doubt. The 1993 repeal of the corroboration requirement for victims between the ages of 14 and 18 did not lower that "sufficiency of the evidence" hurdle; it simply expanded the range of methods the State could use to surmount it.
To be sure, one might descriptively say in an individual case that the uncorroborated testimony of the victim would be "sufficient" to convict under the new version of Article 38.07 and "insufficient" under the old. But that cannot be enough to invalidate a statute as ex post facto. If it were, then all evidentiary rules that work to the defendant's detriment would be unconstitutional as applied to offenses committed before their enactmentan outcome our cases decisively reject. See infra, at 570-571 (discussing Thompson v. Missouri, 171 U.S. 380 (1898), and Hopt v. Territory of Utah, 110 U.S. 574 (1884), which upheld the retroactive application of evidentiary rules governing the authentication of documents and the competency of felons to testify, respectively). A defendant whose conviction turned, for example, on an item of hearsay evidence considered inadmissible at the time of the offense but made admissible by a later enacted statute might accurately describe the new statute as one that permits conviction on less evidence than was "sufficient" under prior law. But our precedents establish that such a defendant has no valid ex post facto claim. See infra, at 570-571. Neither does Carmell.
The Court attempts to distinguish Article 38.07 from garden-variety evidentiary rules by asserting that the latter "are ordinarily evenhanded, in the sense that they may benefit either the State or the defendant in any given case." Ante, at 533, n. 23. The truth of this assertion is not at all clear. Evidence is never admissible in its own right; it must be admitted for some purpose. Rules of admissibility typically take that basic fact into account, often restricting the *563 use of evidence in a way that systematically disadvantages one side. Consider, for example, a rule providing that evidence of a rape victim's sexual relations with persons other than the accused is admissible to prove consent, or a rule providing that evidence of a sexual assault defendant's prior sexual offenses is inadmissible to show a propensity to commit that type of crime. A statute repealing either of the above rules would "always run in the prosecution's favor . . . [by] mak[ing] it easier to convict the accused." Ante, at 546.[7] Yet no one (until today) has suggested that such a statute would be ex post facto as applied to offenses committed before its enactment.
The Court resists the conclusion that Article 38.07 functions as a rule of witness competency by asserting that "[b]oth before and after the amendment, the victim's testimony was competent evidence." Ante, at 544. In all but the most technical sense that blanket statement is dubious. If the victim was 14 years old or older at the time of the offense (18 or older under the amended statute) and her testimony is unbolstered by corroboration or outcry, the jury may not credit that testimony in determining whether the State has met its burden of proof. Such a victim is of course not literally forbidden from testifying, but that cannot make the difference for Ex Post Facto Clause purposes between a sufficiency of the evidence rule and a witness competency rule. Evidence to which the jury is not permitted to assign weight is, in reality, incompetent evidence.
*564 Perhaps the Court has been misdirected by the wording of Article 38.07, which speaks in both its old and new versions of evidence upon which a "conviction . . . is supportable." See ante, at 547. That sounds like a "sufficiency of the evidence rule," until one realizes that any evidence admissible in a criminal casei. e., any evidence that a jury is entitled to consider in determining whether the prosecution has met its burden of persuasionis at least potentially evidence upon which a "conviction . . . is supportable." Conversely, as I have just said, evidence to which the jury may give no weight in making that determination is effectively inadmissible.[8]
In short, no matter how it is phrased, the corroboration requirement of Article 38.07 is functionally identical to a conditional rule of witness competency. If the former version of Article 38.07 had provided instead that "the testimony of the victim shall be inadmissible to prove the defendant's guilt unless corroborated," it would produce the *565 same results as the actual statute in every case. Not "in certain instances," ante, at 551, or "in some situations," ante, at 550, but in every case.[9] Recognizing this equivalency, the Texas Court of Criminal Appeals has noted that the Texas accomplice corroboration rule is "a mere rule of evidence" even though "statutorily worded as a sufficiency standard." Malik v. State, 953 S.W.2d 234, 240, n. 6 (1997).[10]
In sum, the function and purpose of the corroboration requirement embedded in the former version of Article 38.07 was to ensure the credibility of the victim's testimony, not otherwise to impede the defendant's conviction. Our precedents, I explain next, make clear that the retroactive repeal *566 of such an evidentiary rule does not violate the Ex Post Facto Clause.
II
The Ex Post Facto Clause, this Court has said repeatedly, furthers two important purposes. First, it serves "to assure that legislative Acts give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed." Weaver v. Graham, 450 U.S. 24, 28-29 (1981).[11] Second, it "restricts governmental power by restraining arbitrary and potentially vindictive legislation." Id., at 29; see also Landgraf v. USI Film Products, 511 U.S. 244, 267 (1994); Miller v. Florida, 482 U.S. 423, 429-430 (1987). The latter purpose has much to do with the separation of powers; like its textual and conceptual neighbor the Bill of Attainder Clause, the Ex Post Facto Clause aims to ensure that legislatures do not meddle with the judiciary's task of adjudicating guilt and innocence in individual cases. Weaver, 450 U. S., at 29, n. 10.
The Court does not even attempt to justify its extension of the Clause in terms of these two fundamental purposes. That is understandable, for today's decision serves neither purpose. The first purpose (fair warning and reliance), vital as it is, cannot tenably be relied upon by Carmell. He had ample notice that the conduct in which he engaged was illegal. He certainly cannot claim to have relied in any way on the preamendment version of Article 38.07: He tendered *567 no reason to anticipate that K. M. would not report the assault within the outcry period, nor any cause to expect that corroborating evidence would not turn up sooner or later. Nor is the Clause's second purpose relevant here, for there is no indication that the Texas Legislature intended to single out this defendant or any class of defendants for vindictive or arbitrary treatment. Instead, the amendment of Article 38.07 simply brought the rules governing certain victim testimony in sexual offense prosecutions into conformity with Texas law governing witness testimony generally.
In holding the new Article 38.07 unconstitutional as applied to Carmell, the Court relies heavily on the fourth category of ex post facto statutes enumerated by Justice Chase in his opinion in Calder v. Bull, 3 Dall. 386, 390 (1798): "Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender. " Justice Chase's formulation was dictum, of course, because Calder involved a civil statute and the Court held that the statute was not ex post facto for that reason alone. Moreover, Justices Paterson and Iredell in their own seriatim opinions gave no hint that they considered rules of evidence to fall within the scope of the Clause. See id., at 395-397 (Paterson, J.); id., at 398-400 (Iredell, J.). Still, this Court has come to view Justice Chase's categorical enumeration as an authoritative gloss on the Ex Post Facto Clause's reach. Just a decade ago in Collins v. Youngblood, 497 U.S. 37 (1990), for instance, this Court reiterated that "the prohibition which may not be evaded is the one defined by the Calder categories." Id., at 46.
If those words are placed in the context of the full text of the Collins opinion, however, a strong case can be made that Collins pared the number of Calder categories down to three, eliminating altogether the fourth category on which the Court today so heavily relies. As long ago as 1925, in Beazell v. Ohio, 269 U.S. 167, the Court cataloged ex post *568 facto laws without mentioning Chase's fourth category at all. Id., at 169-170. And in Collins the Court cited with apparent approval Beazell `s omission of the fourth category, 497 U.S., at 43, n. 3, declaring that "[t]he Beazell formulation is faithful to our best knowledge of the original understanding of the Ex Post Facto Clause: Legislatures may not retroactively alter the definition of crimes or increase the punishment for criminal acts." Id., at 43. Collins concluded by reciting in the plainest terms the prohibitions laid down by the Ex Post Facto Clause: A statute may not "punish as a crime an act previously committed, which was innocent when done; nor make more burdensome the punishment for a crime, after its commission; nor deprive one charged with crime of any defense available according to law at the time when the act was committed." Id., at 52. This recitation conforms to Calder `s first three categories, but not the fourth; changes in evidentiary rules are nowhere mentioned.[12]
The majority asserts that the Court has repeatedly endorsed Justice Chase's formulation, "including, in particular, the fourth category," and it offers an impressive-looking string citation in support of the claim. Ante, at 525. Yet all of those cases simply quoted or paraphrased Chase's enumeration, a mechanical task that naturally entailed a recitation of the fourth category. Not one of them depended on that category for the judgment the Court reached.[13] Neither *569 did Justice Washington's opinion in Ogden v. Saunders, 12 Wheat. 213 (1827), which is quoted extensively by the Court, ante, at 532. In fact, the Court has never until today relied on the fourth Calder category to invalidate the application of a statute under the Ex Post Facto Clause.
It is true that the Court has on two occasions struck down as ex post facto the retroactive application of rules governing the functioning of the criminal trial processbut both decisions have since been overruled. In Kring v. Missouri, 107 U.S. 221 (1883), the Court held that Missouri was forbidden to apply retroactively a state constitutional amendment providing that a plea of guilty to second-degree murder would not automatically serve on retrial as an acquittal of the charge of first-degree murder. And in Thompson v. Utah, 170 U.S. 343 (1898), the Court held that a change in state law reducing the number of petit jurors in criminal trials from 12 to 8 was ex post facto because it deprived the defendant of "a substantial right involved in his liberty." Id., at 352. The Court in Collins overruled both Kring and Thompson v. Utah, concluding that neither decision was "consistent with the understanding of the term `ex post facto law' at the time the Constitution was adopted." Collins, 497 U. S., at 47, 50, 51-52.
The Court today offers a different reading of Collins. It concludes that Collins overruled Kring and Thompson v. Utah because those cases improperly construed the Ex Post Facto Clause to cover all "substantial protections," and that the fourth Calder category consequently remains intact. *570 That is a plausible reading of Collins, and I might well be prepared to accept it, were the issue presented here. But it is not. For purposes of this case, it does not matter whether Collins eliminated the fourth Calder category or left it undisturbed. For even if the fourth category remains viable, our precedents make clear that it cannot be stretched to fit the statutory change at issue here. Those precedents decisions that fully acknowledged the fourth Calder categoryfirmly establish that retroactively applied changes in rules concerning the admissibility of evidence and the competency of witnesses do not raise Ex Post Facto Clause concerns.
In Thompson v. Missouri, 171 U.S. 380 (1898), this Court upheld against ex post facto attack the retroactive application of a statute that permitted the introduction of previously inadmissible evidence to demonstrate the authenticity of disputed writings. The new statute, the Court reasoned, "did nothing more than remove an obstacle arising out of a rule of evidence that withdrew from the consideration of the jury testimony which, in the opinion of the legislature, tended to elucidate the ultimate, essential fact to be established, namely, the guilt of the accused." Id., at 387.
The case most similar to the one before us is Hopt v. Territory of Utah, 110 U.S. 574 (1884). In that case, a statute in effect at the time of the offense but repealed by the time of trial provided that felons were incompetent to testify. The defendant, whose conviction for capital murder had been based in large part on the testimony of a felon, claimed that the application of the new law to his trial was ex post facto. The Court rejected the defendant's claim, adopting reasoning applicable to the instant case:
"Statutes which simply enlarge the class of persons who may be competent to testify in criminal cases are not ex post facto in their application to prosecutions for crimes committed prior to their passage; for they do *571 not attach criminality to any act previously done, and which was innocent when done; nor aggravate any crime theretofore committed; nor provide a greater punishment therefor than was prescribed at the time of its commission; nor do they alter the degree, or lessen the amount or measure, of the proof which was made necessary to conviction when the crime was committed." Id., at 589.
As the quoted passage shows, the Court in Hopt rejected the defendant's Ex Post Facto Clause claim while retaining Calder `s fourth category. The same outcome should obtain today, for Hopt cannot meaningfully be distinguished from the instant case.
The Court asserts that "Article 38.07 plainly fits" the fourth Calder category, because "[r]equiring only the victim's testimony to convict, rather than the victim's testimony plus other corroborating evidence is surely `less testimony required to convict' in any straightforward sense of those words." Ante, at 530. Yet to declare Article 38.07 ex post facto on that basis is to overrule Hopt without saying so. For if the amended version of Article 38.07 requires "less testimony . . . to convict," then so do countless evidentiary rules, including the felon competency rule whose retroactive application we upheld in Hopt. In both this case and Hopt, a conviction based on evidence previously deemed inadmissible was sustained pursuant to a broadened rule regarding the competency of testimonial evidence. The mere fact that the new version of Article 38.07 makes some convictions easier to obtain cannot be enough to preclude its retroactive application. "Even though it may work to the disadvantage of a defendant, a procedural change is not ex post facto." Dobbert v. Florida, 432 U.S. 282, 293 (1977).
In short, the Court's expansive new reading of the Ex Post Facto Clause cannot be squared with this Court's prior decisions. Rather than embrace such an unprecedented approach, I would advance a "commonsense understanding of *572 Calder `s fourth category," ante, at 530, one that comports with our precedents and with the underlying purposes of the Ex Post Facto Clause: Laws that reduce the burden of persuasion the prosecution must satisfy to win a conviction may not be applied to offenses committed before their enactment. To be sure, this reading would leave the fourth category with considerably less independent effect than it would have had in Justice Chase's day, given our intervening decisions establishing the "beyond a reasonable doubt" standard as a constitutional minimum under the Due Process Clause. See, e. g., In re Winship, 397 U.S. 358 (1970); Jackson v. Virginia, 443 U.S. 307 (1979). But it is not a reading that necessarily renders the category meaningless even today. Imagine, for example, a statute requiring the prosecution to prove a particular sentencing enhancement factorleadership role in the offense, say, or obstruction of justicebeyond a reasonable doubt. A new statute providing that the factor could be established by a mere preponderance of the evidence might rank as ex post facto if applied to offenses committed before its enactment. The same might be said of a statute retroactively increasing the defendant's burden of persuasion as to an affirmative defense.
Burdens of persuasion are qualitative tests of sufficiency. Calder `s fourth category, however, encompasses quantitative sufficiency rules as well, for Justice Chase did speak of a law that "receives less . . . testimony, than the law required at the time of the commission of the offence." 3 Dall., at 390 (emphasis added). Cf. Hopt, 110 U. S., at 590 ("Any statutory alteration of the legal rules of evidence which would authorize conviction upon less proof, in amount or degree, than was required when the offence was committed" might be ex post facto. (emphasis added)). Quantitative sufficiency rules are rare in modern Anglo-American law, but some do exist. Criminal statutes sometimes limit the prosecution to a particular form of proof, for example, the testimony of two witnesses to the same overt act. In modern Anglo- *573 American law, such instances have been almost exclusively confined to two contexts: perjury, see Weiler v. United States, 323 U.S. 606 (1945), and treason, see U. S. Const., Art. III, § 3, cl. 1 ("No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court."). See generally Wigmore, Required Numbers of Witnesses; A Brief History of the Numerical System in England, 15 Harv. L. Rev. 83, 100 108 (1901).
The treason statute in effect at the time of John Fenwick's conspiracy, like the Treason Clause of our Constitution, embodied just such a quantitative sufficiency rule: As long as the accused traitor put the prosecution to its proof by pleading not guilty, the sworn testimony of two witnesses was necessary to support a conviction. The Court describes at great length the attainder of Fenwick, which served as a cautionary model for Justice Chase's explication of the fourth category in Calder. See ante, at 526-530.[14] This excursion into post-Restoration English history is diverting, but the Court's statement that "the circumstances of petitioner's case parallel those of Fenwick's case 300 years earlier," ante, at 530, simply will not wash. The preamendment version of Article 38.07 is nothing like the two-witness rule on which Fenwick vainly relied.[15]
First, the preamendment version of Article 38.07, unlike a two-witness rule, did not apply indifferently to all who testify. Rather, it branded a particular class of witnesses *574 sexual assault victims aged 14 or olderas less competent than others to speak in court. Second, as I have already described, the Texas statute did not restrict the State to one prescribed form of proof. Both before and after the 1993 amendment, introduction of the victim's corroborated testimony was neither required nor necessarily sufficient to sustain a conviction. Prosecutors' compliance with both the old and new versions of Article 38.07 thus "says absolutely nothing about whether they have introduced a quantum of evidence sufficient to convict the offender." Ante, at 547, 551-552.[16] On the contrary, the only sufficiency rule applicable in Texas sexual offense prosecutions has always been a qualitative one: The State's evidence must be sufficient to prove every element of the offense beyond a reasonable doubt.
That should not be surprising. It makes little sense in our modern legal system to conceive of standards of proof in quantitative terms. In a civil case, the winner is the party that produces better evidence, not the party that produces more evidence. Similarly, in a criminal trial the prosecution need not introduce any fixed amount of evidence, so long as the evidence it does introduce could persuade a rational factfinder beyond a reasonable doubt. "Our system of justice rests on the general assumption that the truth is not to be determined merely by the number of witnesses on each side of a controversy. In gauging the truth of conflicting evidence, a jury has no simple formulation of weights and measures on which to rely. The touchstone is always credibility; the ultimate measure of testimonial worth is quality and not *575 quantity." Weiler, 323 U. S., at 608. If the Court wishes to rely on the fourth Calder category to render Texas' altered evidentiary rule prospective only, it should do so forthrightly by overruling Hopt and Thompson v. Missouri, rather than by attempting to portray Article 38.07 as a quantitative sufficiency rule indistinguishable from the two-witness requirement that figured in John Fenwick's case.
* * *
In sum, it is well settled (or was until today) that retroactive changes to rules concerning the admissibility of evidence and the competency of witnesses to testify cannot be ex post facto. Because Article 38.07 is in both function and purpose a rule of admissibility, Thompson v. Missouri, Hopt, Beazell, and Collins dictate that its retroactive application does not violate the Ex Post Facto Clause. That conclusion comports perfectly with the dual purposes that underlie the Clause: ensuring fair notice so that individuals can rely on the laws in force at the time they engage in conduct, and sustaining the separation of powers while preventing the passage of vindictive legislation. The Court today thus not only brings about an "undefined enlargement of the Ex Post Facto Clause," Collins, 497 U. S., at 46, that conflicts with established precedent, it also fails to advance the Clause's fundamental purposes. For these reasons, I dissent.
| The Court today holds that the amended version of Article 38.07 of the Texas Code of Criminal Procedure reduces the amount of proof necessary to support a sexual assault conviction, and that its retroactive application therefore violates the Ex Post Facto Clause. In so holding, the Court misreads both the Texas statute and our precedents concerning the Ex Post Facto Clause. Article 38.07 is not, as the Court would have it, most accurately characterized as a "sufficiency of the evidence rule"; it is in its essence an evidentiary provision dictating the circumstances under which the jury may credit victim testimony in sexual offense prosecutions. The amended version of Article 38.07 does nothing more than accord to certain victims of sexual offenses full testimonial stature, giving them the same undiminished competency to testify that Texas extends to witnesses generally in the State's judicial proceedings. Our precedents make clear that such a witness competency rule validly may be applied to offenses committed before its enactment. I therefore dissent. *554 * * * Petitioner Scott Leslie Carmell began sexually abusing his stepdaughter, "K. M.," in the spring of 1991, when K. M. was 13 years old. He continued to do so through March 1995. The specific question before the Court concerns Carmell's sexual assault on K. M. in June 1992, when K. M. was 14.[1] K. M. did not inform anyone about that assault or about any of Carmell's other sexual advances toward her until sometime around March 1995, when she told a friend and then her mother, Eleanor Alexander. Alexander went to the police, and Carmell was arrested and charged in a 15-count indictment. Under Article 38.07 of the Texas Code of Criminal Procedure as it stood at the time of the assault, a conviction for sexual assault was supportable on the uncorroborated testimony of the victim if the victim was younger than 14 years old at the time of the offense. If the victim was 14 years old or older, however, the victim's testimony could support a conviction only if that testimony was corroborated by other evidence. One form of corroboration, specifically described in Article 38.07 itself, was known as "outcry": The victim's testimony could support a conviction if he or she had informed another person, other than the defendant, about the offense within six months of its occurrence. Tex. Code Crim. Proc. Ann., Art. 38.07 Article 38.07 was amended in 1993. Under the new version, which was in effect at the time of Carmell's trial, the victim's uncorroborated testimony can support a conviction as long as the victim was under 18 years of age at the time of the offense. Tex. Code Crim. Proc. Ann., Art. 38.07 (Vernon Supp. 2000). The corroboration requirement continues *555 in force for victims aged 18 or older, with a modified definition of outcry not material here. Thus, under the version of Article 38.07 in effect at the time of Carmell's trial but not the version in effect at the time of the offense, his conviction was supportable by the uncorroborated testimony of K. M. The new version of Article 38.07 was applied at Carmell's trial, and he was convicted.[2] Carmell argues that the application of the new version of Article 38.07 to his trial violated the Ex Post Facto Clause, U. S. Const., Art. I, 10, cl. 1. I A proper understanding of Article 38.07 of the Texas Code of Criminal Procedure is central to this case. Accordingly, I turn first to the effect and purpose of that statute. The effect of Article 38.07 in sexual offense prosecutions is plain. If the victim is of a certain age, the jury, in assessing whether the prosecution has met its burden of demonstrating guilt beyond a reasonable doubt, must give no weight to her testimony unless that testimony is corroborated, either by other evidence going directly to guilt or by "outcry."[3] For victims (such as K. M.) who were between the ages of 14 and *556 18 at the time of the offense, the 1993 amendment repealed this corroboration requirement. The amended version of Article 38.07 thus permits sexual assault victims between 14 and 18 to have their testimony considered by the jury in the same manner and with the same effect as that of witnesses generally in Texas prosecutions. This sort of corroboration requirementstill embodied in Article 38.07 for victims aged 18 or olderis a common, if increasingly outmoded, rule of evidence. Its purpose is to rein in the admissibility of testimony the legislature has deemed insufficiently credible standing alone. Texas' requirement of corroboration or outcry, like similar provisions in other jurisdictions, is premised on a legislative judgment that accusations made by sexual assault victims above a certain age are not independently trustworthy. See ; cf., e. g., (evidence of outcry "rebuts an implied charge of recent fabrication, which springs from some jurors' assumptions that sexual offense victims are generally lying and that the victim's failure to report the crime promptly is inconsistent with the victim's current statement that the assault occurred"). Legislatures in many States, including Texas, have enacted similar evidentiary provisions requiring corroboration for the testimony of other categories of witnesses, particularly accomplices. See, e. g., Tex. Code Crim. Proc. Ann., Art. 38.14 (Vernon Supp. 2000) ("A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed").Such provisionsgenerally on the wane but still in force in several Statesare, like Article 38.07, designed to ensure the credibility of the relevant witness. See, e. g., ; ; I make no judgment here as to the propriety of the Texas Legislature's decision to view the testimony of certain sexual assault victims in the same light as that of accomplices. Ex post facto analysis does not depend on an assessment of a statute's wisdom. For current purposes it suffices to note that Article 38.07's corroboration requirement rests on the same rationale that underpins accomplice corroboration requirements: the notion that a particular witness, because of his or her role in the events at issue, might not give trustworthy testimony. See ; Hernandez v.State, (Article 38.07's corroboration requirement "was meant to deal only with testimony of a victim of a sexual offense who, for one reason or another, was held to be an `accomplice witness' and, perforce, whose testimony must be corroborated."). The history of Article 38.07 bears out the view that its focus has always been on the competency and credibility of the victim as witness. The origins of the statute could be traced to the fact that in Texas, "for many years a seduced female was an incompetent witness as a matter of law." Holladay, 709 S. W. 2d, at 200. See, e. g., ; see also Hernandez, 651 S. W. 2d, at -752 (tracing the current Article 38.07 to the earlier seduction victim competency rule). In 1891, this common-law disability was lifted by statute and replaced by a corroboration requirement: "In prosecutions for seduction the female alleged to have been seduced shall be permitted to testify; but no conviction shall be had upon the testimony of the said female, unless the same is corroborated by other evidence tending to connect the defendant with the offense charged." Tex. Rev. Crim. Stat., Tit. 8, ch. 7, Art. 789 (1911). The application of this statute to offenses committed before its enactment was upheld by the Texas courts on the authority of See The corroboration requirement for seduction prosecutions, recodified in 5 at Tex. Code Crim. Proc. Ann., Art. 38.07, remained in effect until 1973, when the entire 1925 Penal Code (including the offense of seduction) was repealed. In 1975, Article 38.07 was enacted substantially in its present form. As revised, the article covered all sexual offenses in Chapter 21 of the Texas Penal Code; however, it contained no express exemption from the corroboration requirement for the testimony of the youngest victims. Tex. Code Crim. Proc. Ann., Art. 38.07 The exemption for victims under the age of 14 was added in 1983, and extended in 1993 to cover those under the age of 18, as already described. As initially proposed, the 1993 change would have eliminated the corroboration/outcry requirement altogether. House Research Organization, Texas House of Representatives, Daily Floor Report 13 Lodging of Petitioner. Supporters of the proposal maintained that "[v]ictims in sexual assault cases are no more likely to fantasize or misconstrue the truth than the victims of most other crimes, which do not require corroboration of testimony or previous `outcry.' Juries can decide if a witness is credible. Most states no longer require this type of corroboration; *559 neither should Texas." The historical development of Article 38.07 reveals a progressive alleviation of restrictions on the competency of victim testimony, not a legislative emphasis on the quantum of evidence needed to convict. The version of Article 38.07 applied at Carmell's trial was thus, in both effect and purpose, an evidentiary rule governing the weight that may be given to the testimony of sexual assault victims who had attained the age of 14. The Court's efforts to paint it as something more than that are detached from the statute's moorings and are consequently unpersuasive. To begin with, it is beyond doubt that Article 38.07 does not establish an element of the offense. See To convict a defendant of sexual assault in Texas today as before 1993, the prosecution need not introduce the victim's testimony at all, much less any corroboration of that testimony. The Court is therefore less than correct in asserting that "[u]nder the law in effect at the time the acts were committed, the prosecution's case was legally insufficient and petitioner was entitled to a judgment of acquittal, unless the State could produce both the victim's testimony and corroborative evidence." Ante, at 530. Under both the old and new versions of the statute, a conviction could be sustained on the testimony of a single third-party witness, on purely circumstantial evidence, or in any number of other waysso long as the admissible evidence presented is sufficient to prove all of the elements of the offense beyond a reasonable doubt.[4] And under either version of Article 38.07, of course, *560 the accused could be convicted, like any other defendant, on the basis of a guilty plea or a voluntary confession. Article 38.07, in other words, does not define "sexual assault proven by corroborated victim testimony" as a distinct offense from "sexual assault." Rather, the measure operates only to restrict the State's method of proving its case.[5] And it does so without affecting in any way the burden of persuasion that the prosecution must satisfy to support a conviction. Under both the old and new versions of the statute, the applicable standard is proof beyond a reasonable doubt. The amendment in 1993 that repealed the corroboration requirement for victims between the ages of 14 and 18 did nothing to change that standard. The Court recognizes that Article 38.07 does not affect the applicable burden of persuasion, see ante, at 539, but several times it asserts that the amended version of the statute "changed the quantum of evidence necessary to sustain a conviction," ante, at 530 See also ante, at 531 (amended law "permitted petitioner to be convicted with less than the previously required quantum of evidence"); ante, at 532-533 (amended law "[r]educ[es] the quantum of evidence necessary to meet the burden of proof" (emphases added)). If by the word "quantum" the Court means to refer to the burden of persuasion, these statements are simply incorrect and contradict the Court's own acknowledgment. And if, as appears more likely, "quantum" refers to some required quantity or amount of proof, the Court is also wrong. The partial repeal of Article 38.07's corroboration requirement did not change the quantity of proof necessary to convict in every case, for the simple reason that Texas has never required the prosecution to introduce any particular *561 number of witnesses or items of proof to support a sexual assault conviction.[6] The Court also declares several times that the amended version of Article 38.07 "subverts the presumption of innocence." See ante, at 532; see also ante, at 533, nn. 22, 23, 546. The phrase comes from in which the Court struck down a series of post-Civil War amendments to the Missouri Constitution that imposed penalties on persons unable or unwilling to swear an oath that they had not aided the Confederacy. The amendments, the Court said in Cummings, "subvert the presumptions of innocence" because "[t]hey assume that the parties are guilty [and] call upon [them] to establish their innocence" by swearing the oath. Nothing of the kind is involved here. Article 38.07 did not impose a presumption of guilt on Carmell and then saddle him with the task of overcoming it. The burden of persuasion remained at all times with the State. See Tex. Code Crim. Proc. Ann., Art. 38.03 (Vernon Supp. 2000). Carmell's presumption of innocence is thus untouched by the current Article 38.07's recognition of K. M.'s full testimonial stature. The Court places perhaps its greatest weight on the "sufficiency of the evidence" label, see ante, at 547-552, but the label will not stick. As just noted, Article 38.07 has never dictated what it takes in all cases, quantitatively or qualitatively, for evidence to be sufficient to convict. To the contrary, under both the old and new versions of the statute the *562 prosecution's admissible evidence will be sufficient to support a conviction if a rational factfinder presented with that evidence could find the defendant guilty beyond a reasonable doubt. The 1993 repeal of the corroboration requirement for victims between the ages of 14 and 18 did not lower that "sufficiency of the evidence" hurdle; it simply expanded the range of methods the State could use to surmount it. To be sure, one might descriptively say in an individual case that the uncorroborated testimony of the victim would be "sufficient" to convict under the new version of Article 38.07 and "insufficient" under the old. But that cannot be enough to invalidate a statute as ex post facto. If it were, then all evidentiary rules that work to the defendant's detriment would be unconstitutional as applied to offenses committed before their enactmentan outcome our cases decisively reject. See infra, at 570-571 and which upheld the retroactive application of evidentiary rules governing the authentication of documents and the competency of felons to testify, respectively). A defendant whose conviction turned, for example, on an item of hearsay evidence considered inadmissible at the time of the offense but made admissible by a later enacted statute might accurately describe the new statute as one that permits conviction on less evidence than was "sufficient" under prior law. But our precedents establish that such a defendant has no valid ex post facto claim. See infra, at 570-571. Neither does Carmell. The Court attempts to distinguish Article 38.07 from garden-variety evidentiary rules by asserting that the latter "are ordinarily evenhanded, in the sense that they may benefit either the State or the defendant in any given case." Ante, at 533, n. 23. The truth of this assertion is not at all clear. Evidence is never admissible in its own right; it must be admitted for some purpose. Rules of admissibility typically take that basic fact into account, often restricting the *563 use of evidence in a way that systematically disadvantages one side. Consider, for example, a rule providing that evidence of a rape victim's sexual relations with persons other than the accused is admissible to prove consent, or a rule providing that evidence of a sexual assault defendant's prior sexual offenses is inadmissible to show a propensity to commit that type of crime. A statute repealing either of the above rules would "always run in the prosecution's favor [by] mak[ing] it easier to convict the accused." Ante, at 546.[7] Yet no one (until today) has suggested that such a statute would be ex post facto as applied to offenses committed before its enactment. The Court resists the conclusion that Article 38.07 functions as a rule of witness competency by asserting that "[b]oth before and after the amendment, the victim's testimony was competent evidence." Ante, at 544. In all but the most technical sense that blanket statement is dubious. If the victim was 14 years old or older at the time of the offense (18 or older under the amended statute) and her testimony is unbolstered by corroboration or outcry, the jury may not credit that testimony in determining whether the State has met its burden of proof. Such a victim is of course not literally forbidden from testifying, but that cannot make the difference for Ex Post Facto Clause purposes between a sufficiency of the evidence rule and a witness competency rule. Evidence to which the jury is not permitted to assign weight is, in reality, incompetent evidence. *564 Perhaps the Court has been misdirected by the wording of Article 38.07, which speaks in both its old and new versions of evidence upon which a "conviction is supportable." See ante, at 547. That sounds like a "sufficiency of the evidence rule," until one realizes that any evidence admissible in a criminal casei. e., any evidence that a jury is entitled to consider in determining whether the prosecution has met its burden of persuasionis at least potentially evidence upon which a "conviction is supportable." Conversely, as I have just said, evidence to which the jury may give no weight in making that determination is effectively inadmissible.[8] In short, no matter how it is phrased, the corroboration requirement of Article 38.07 is functionally identical to a conditional rule of witness competency. If the former version of Article 38.07 had provided instead that "the testimony of the victim shall be inadmissible to prove the defendant's guilt unless corroborated," it would produce the *565 same results as the actual statute in every case. Not "in certain instances," ante, at 551, or "in some situations," ante, at 550, but in every case.[9] Recognizing this equivalency, the Texas Court of Criminal Appeals has noted that the Texas accomplice corroboration rule is "a mere rule of evidence" even though "statutorily worded as a sufficiency standard."[10] In sum, the function and purpose of the corroboration requirement embedded in the former version of Article 38.07 was to ensure the credibility of the victim's testimony, not otherwise to impede the defendant's conviction. Our precedents, I explain next, make clear that the retroactive repeal *566 of such an evidentiary rule does not violate the Ex Post Facto Clause. II The Ex Post Facto Clause, this Court has said repeatedly, furthers two important purposes. First, it serves "to assure that legislative Acts give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed."[11] Second, it "restricts governmental power by restraining arbitrary and potentially vindictive legislation." ; see also ; The latter purpose has much to do with the separation of powers; like its textual and conceptual neighbor the Bill of Attainder Clause, the Ex Post Facto Clause aims to ensure that legislatures do not meddle with the judiciary's task of adjudicating guilt and innocence in individual cases. 450 U. S., n. 10. The Court does not even attempt to justify its extension of the Clause in terms of these two fundamental purposes. That is understandable, for today's decision serves neither purpose. The first purpose (fair warning and reliance), vital as it is, cannot tenably be relied upon by Carmell. He had ample notice that the conduct in which he engaged was illegal. He certainly cannot claim to have relied in any way on the preamendment version of Article 38.07: He tendered *567 no reason to anticipate that K. M. would not report the assault within the outcry period, nor any cause to expect that corroborating evidence would not turn up sooner or later. Nor is the Clause's second purpose relevant here, for there is no indication that the Texas Legislature intended to single out this defendant or any class of defendants for vindictive or arbitrary treatment. Instead, the amendment of Article 38.07 simply brought the rules governing certain victim testimony in sexual offense prosecutions into conformity with Texas law governing witness testimony generally. In holding the new Article 38.07 unconstitutional as applied to Carmell, the Court relies heavily on the fourth of ex post facto statutes enumerated by Justice Chase in his opinion in : "Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender. " Justice Chase's formulation was dictum, of course, because Calder involved a civil statute and the Court held that the statute was not ex post facto for that reason alone. Moreover, Justices Paterson and Iredell in their own seriatim opinions gave no hint that they considered rules of evidence to fall within the scope of the Clause. See ; Still, this Court has come to view Justice Chase's categorical enumeration as an authoritative gloss on the Ex Post Facto Clause's reach. Just a decade ago in for instance, this Court reiterated that "the prohibition which may not be evaded is the one defined by the Calder categories." If those words are placed in the context of the full text of the opinion, however, a strong case can be made that pared the number of Calder categories down to three, eliminating altogether the fourth on which the Court today so heavily relies. As long ago as 1925, in the Court cataloged ex post *568 facto laws without mentioning Chase's fourth at all. And in the Court cited with apparent approval Beazell `s omission of the fourth n. 3, declaring that "[t]he Beazell formulation is faithful to our best knowledge of the original understanding of the Ex Post Facto Clause: Legislatures may not retroactively alter the definition of crimes or increase the punishment for criminal acts." concluded by reciting in the plainest terms the prohibitions laid down by the Ex Post Facto Clause: A statute may not "punish as a crime an act previously committed, which was innocent when done; nor make more burdensome the punishment for a crime, after its commission; nor deprive one charged with crime of any defense available according to law at the time when the act was committed." This recitation conforms to Calder `s first three categories, but not the fourth; changes in evidentiary rules are nowhere mentioned.[12] The majority asserts that the Court has repeatedly endorsed Justice Chase's formulation, "including, in particular, the fourth" and it offers an impressive-looking string citation in support of the claim. Ante, 5. Yet all of those cases simply quoted or paraphrased Chase's enumeration, a mechanical task that naturally entailed a recitation of the fourth Not one of them depended on that for the judgment the Court reached.[13] Neither *569 did Justice Washington's opinion in which is quoted extensively by the Court, ante, at 532. In fact, the Court has never until today relied on the fourth Calder to invalidate the application of a statute under the Ex Post Facto Clause. It is true that the Court has on two occasions struck down as ex post facto the retroactive application of rules governing the functioning of the criminal trial processbut both decisions have since been overruled. In the Court held that Missouri was forbidden to apply retroactively a state constitutional amendment providing that a plea of guilty to second-degree murder would not automatically serve on retrial as an acquittal of the charge of first-degree murder. And in the Court held that a change in state law reducing the number of petit jurors in criminal trials from 12 to 8 was ex post facto because it deprived the defendant of "a substantial right involved in his liberty." The Court in overruled both Kring and concluding that neither decision was "consistent with the understanding of the term `ex post facto law' at the time the Constitution was adopted." 50, 51-52. The Court today offers a different reading of It concludes that overruled Kring and because those cases improperly construed the Ex Post Facto Clause to cover all "substantial protections," and that the fourth Calder consequently remains intact. *570 That is a plausible reading of and I might well be prepared to accept it, were the issue presented here. But it is not. For purposes of this case, it does not matter whether eliminated the fourth Calder or left it undisturbed. For even if the fourth remains viable, our precedents make clear that it cannot be stretched to fit the statutory change at issue here. Those precedents decisions that fully acknowledged the fourth Calder firmly establish that retroactively applied changes in rules concerning the admissibility of evidence and the competency of witnesses do not raise Ex Post Facto Clause concerns. In this Court upheld against ex post facto attack the retroactive application of a statute that permitted the introduction of previously inadmissible evidence to demonstrate the authenticity of disputed writings. The new statute, the Court reasoned, "did nothing more than remove an obstacle arising out of a rule of evidence that withdrew from the consideration of the jury testimony which, in the opinion of the legislature, tended to elucidate the ultimate, essential fact to be established, namely, the guilt of the accused." The case most similar to the one before us is In that case, a statute in effect at the time of the offense but repealed by the time of trial provided that felons were incompetent to testify. The defendant, whose conviction for capital murder had been based in large part on the testimony of a felon, claimed that the application of the new law to his trial was ex post facto. The Court rejected the defendant's claim, adopting reasoning applicable to the instant case: "Statutes which simply enlarge the class of persons who may be competent to testify in criminal cases are not ex post facto in their application to prosecutions for crimes committed prior to their passage; for they do *571 not attach criminality to any act previously done, and which was innocent when done; nor aggravate any crime theretofore committed; nor provide a greater punishment therefor than was prescribed at the time of its commission; nor do they alter the degree, or lessen the amount or measure, of the proof which was made necessary to conviction when the crime was committed." As the quoted passage shows, the Court in rejected the defendant's Ex Post Facto Clause claim while retaining Calder `s fourth The same outcome should obtain today, for cannot meaningfully be distinguished from the instant case. The Court asserts that "Article 38.07 plainly fits" the fourth Calder because "[r]equiring only the victim's testimony to convict, rather than the victim's testimony plus other corroborating evidence is surely `less testimony required to convict' in any straightforward sense of those words." Ante, at 530. Yet to declare Article 38.07 ex post facto on that basis is to overrule without saying so. For if the amended version of Article 38.07 requires "less testimony to convict," then so do countless evidentiary rules, including the felon competency rule whose retroactive application we upheld in In both this case and a conviction based on evidence previously deemed inadmissible was sustained pursuant to a broadened rule regarding the competency of testimonial evidence. The mere fact that the new version of Article 38.07 makes some convictions easier to obtain cannot be enough to preclude its retroactive application. "Even though it may work to the disadvantage of a defendant, a procedural change is not ex post facto." In short, the Court's expansive new reading of the Ex Post Facto Clause cannot be squared with this Court's prior decisions. Rather than embrace such an unprecedented approach, I would advance a "commonsense understanding of *572 Calder `s fourth" ante, at 530, one that comports with our precedents and with the underlying purposes of the Ex Post Facto Clause: Laws that reduce the burden of persuasion the prosecution must satisfy to win a conviction may not be applied to offenses committed before their enactment. To be sure, this reading would leave the fourth with considerably less independent effect than it would have had in Justice Chase's day, given our intervening decisions establishing the "beyond a reasonable doubt" standard as a constitutional minimum under the Due Process Clause. See, e. g., In re Winship, ; But it is not a reading that necessarily renders the meaningless even today. Imagine, for example, a statute requiring the prosecution to prove a particular sentencing enhancement factorleadership role in the offense, say, or obstruction of justicebeyond a reasonable doubt. A new statute providing that the factor could be established by a mere preponderance of the evidence might rank as ex post facto if applied to offenses committed before its enactment. The same might be said of a statute retroactively increasing the defendant's burden of persuasion as to an affirmative defense. Burdens of persuasion are qualitative tests of sufficiency. Calder `s fourth however, encompasses quantitative sufficiency rules as well, for Justice Chase did speak of a law that "receives less testimony, than the law required at the time of the commission of the offence." 3 Dall., at Cf. ("Any statutory alteration of the legal rules of evidence which would authorize conviction upon less proof, in amount or degree, than was required when the offence was committed" might be ex post facto. ). Quantitative sufficiency rules are rare in modern Anglo-American law, but some do exist. Criminal statutes sometimes limit the prosecution to a particular form of proof, for example, the testimony of two witnesses to the same overt act. In modern Anglo- *573 American law, such instances have been almost exclusively confined to two contexts: perjury, see and treason, see U. S. Const., Art. III, 3, cl. 1 ("No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court."). See generally Wigmore, Required Numbers of Witnesses; A Brief History of the Numerical System in England, 100 (1901). The treason statute in effect at the time of John Fenwick's conspiracy, like the Treason Clause of our Constitution, embodied just such a quantitative sufficiency rule: As long as the accused traitor put the prosecution to its proof by pleading not guilty, the sworn testimony of two witnesses was necessary to support a conviction. The Court describes at great length the attainder of Fenwick, which served as a cautionary model for Justice Chase's explication of the fourth in Calder. See ante, 6-530.[14] This excursion into post-Restoration English history is diverting, but the Court's statement that "the circumstances of petitioner's case parallel those of Fenwick's case 300 years earlier," ante, at 530, simply will not wash. The preamendment version of Article 38.07 is nothing like the two-witness rule on which Fenwick vainly relied.[15] First, the preamendment version of Article 38.07, unlike a two-witness rule, did not apply indifferently to all who testify. Rather, it branded a particular class of witnesses *574 sexual assault victims aged 14 or olderas less competent than others to speak in court. Second, as I have already described, the Texas statute did not restrict the State to one prescribed form of proof. Both before and after the 1993 amendment, introduction of the victim's corroborated testimony was neither required nor necessarily sufficient to sustain a conviction. Prosecutors' compliance with both the old and new versions of Article 38.07 thus "says absolutely nothing about whether they have introduced a quantum of evidence sufficient to convict the offender." Ante, at 547, 551-552.[16] On the contrary, the only sufficiency rule applicable in Texas sexual offense prosecutions has always been a qualitative one: The State's evidence must be sufficient to prove every element of the offense beyond a reasonable doubt. That should not be surprising. It makes little sense in our modern legal system to conceive of standards of proof in quantitative terms. In a civil case, the winner is the party that produces better evidence, not the party that produces more evidence. Similarly, in a criminal trial the prosecution need not introduce any fixed amount of evidence, so long as the evidence it does introduce could persuade a rational factfinder beyond a reasonable doubt. "Our system of justice rests on the general assumption that the truth is not to be determined merely by the number of witnesses on each side of a controversy. In gauging the truth of conflicting evidence, a jury has no simple formulation of weights and measures on which to rely. The touchstone is always credibility; the ultimate measure of testimonial worth is quality and not *575 quantity." If the Court wishes to rely on the fourth Calder to render Texas' altered evidentiary rule prospective only, it should do so forthrightly by overruling and rather than by attempting to portray Article 38.07 as a quantitative sufficiency rule indistinguishable from the two-witness requirement that figured in John Fenwick's case. * * * In sum, it is well settled (or was until today) that retroactive changes to rules concerning the admissibility of evidence and the competency of witnesses to testify cannot be ex post facto. Because Article 38.07 is in both function and purpose a rule of admissibility, Beazell, and dictate that its retroactive application does not violate the Ex Post Facto Clause. That conclusion comports perfectly with the dual purposes that underlie the Clause: ensuring fair notice so that individuals can rely on the laws in force at the time they engage in conduct, and sustaining the separation of powers while preventing the passage of vindictive legislation. The Court today thus not only brings about an "undefined enlargement of the Ex Post Facto Clause," 497 U. S., that conflicts with established precedent, it also fails to advance the Clause's fundamental purposes. For these reasons, I dissent. |
Justice O'Connor | concurring | false | Payne v. Tennessee | 1991-09-13T00:00:00 | null | https://www.courtlistener.com/opinion/112643/payne-v-tennessee/ | https://www.courtlistener.com/api/rest/v3/clusters/112643/ | 1,991 | 1990-125 | 1 | 6 | 3 | In my view, a State may legitimately determine that victim impact evidence is relevant to a capital sentencing proceeding. A State may decide that the jury, before determining whether a convicted murderer should receive the death penalty, should know the full extent of the harm caused by the crime, including its impact on the victim's family and community. A State may decide also that the jury should see "a quick glimpse of the life petitioner chose to extinguish," Mills v. Maryland, 486 U.S. 367, 397 (1988) (REHNQUIST, *831 C. J., dissenting), to remind the jury that the person whose life was taken was a unique human being.
Given that victim impact evidence is potentially relevant, nothing in the Eighth Amendment commands that States treat it differently than other kinds of relevant evidence. "The Eighth Amendment stands as a shield against those practices and punishments which are either inherently cruel or which so offend the moral consensus of this society as to be deemed `cruel and unusual.'" South Carolina v. Gathers, 490 U.S. 805, 821 (1989) (O'CONNOR, J., dissenting). Certainly there is no strong societal consensus that a jury may not take into account the loss suffered by a victim's family or that a murder victim must remain a faceless stranger at the penalty phase of a capital trial. Just the opposite is true. Most States have enacted legislation enabling judges and juries to consider victim impact evidence. Ante, at 821. The possibility that this evidence may in some cases be unduly inflammatory does not justify a prophylactic, constitutionally based rule that this evidence may never be admitted. Trial courts routinely exclude evidence that is unduly inflammatory; where inflammatory evidence is improperly admitted, appellate courts carefully review the record to determine whether the error was prejudicial.
We do not hold today that victim impact evidence must be admitted, or even that it should be admitted. We hold merely that if a State decides to permit consideration of this evidence, "the Eighth Amendment erects no per se bar." Ante, at 827. If, in a particular case, a witness' testimony or a prosecutor's remark so infects the sentencing proceeding as to render it fundamentally unfair, the defendant may seek appropriate relief under the Due Process Clause of the Fourteenth Amendment.
That line was not crossed in this case. The State called as a witness Mary Zvolanek, Nicholas' grandmother. Her testimony was brief. She explained that Nicholas cried for his mother and baby sister and could not understand why they *832 did not come home. I do not doubt that the jurors were moved by this testimony who would not have been? But surely this brief statement did not inflame their passions more than did the facts of the crime: Charisse Christopher was stabbed 41 times with a butcher knife and bled to death; her 2-year-old daughter Lacie was killed by repeated thrusts of that same knife; and 3-year-old Nicholas, despite stab wounds that penetrated completely through his body from front to back, survived only to witness the brutal murders of his mother and baby sister. In light of the jury's unavoidable familiarity with the facts of Payne's vicious attack, I cannot conclude that the additional information provided by Mary Zvolanek's testimony deprived petitioner of due process.
Nor did the prosecutor's comments about Charisse and Lacie in the closing argument violate the Constitution. The jury had earlier seen a videotape of the murder scene that included the slashed and bloody corpses of Charisse and Lacie. In arguing that Payne deserved the death penalty, the prosecutor sought to remind the jury that Charisse and Lacie were more than just lifeless bodies on a videotape, that they were unique human beings. The prosecutor remarked that Charisse would never again sing a lullaby to her son and that Lacie would never attend a high school prom. In my view, these statements were permissible. "Murder is the ultimate act of depersonalization." Brief for Justice For All Political Committee et al. as Amici Curiae 3. It transforms a living person with hopes, dreams, and fears into a corpse, thereby taking away all that is special and unique about the person. The Constitution does not preclude a State from deciding to give some of that back.
I agree with the Court that Booth v. Maryland, 482 U.S. 496 (1987), and Gathers, supra, were wrongly decided. The Eighth Amendment does not prohibit a State from choosing to admit evidence concerning a murder victim's personal characteristics or the impact of the crime on the victim's family *833 and community. Booth also addressed another kind of victim impact evidence opinions of the victim's family about the crime, the defendant, and the appropriate sentence. As the Court notes in today's decision, we do not reach this issue as no evidence of this kind was introduced at petitioner's trial. Ante, at 830, n. 2. Nor do we express an opinion as to other aspects of the prosecutor's conduct. As to the victim impact evidence that was introduced, its admission did not violate the Constitution. Accordingly, I join the Court's opinion. | In my view, a State may legitimately determine that victim impact evidence is relevant to a capital sentencing proceeding. A State may decide that the jury, before determining whether a convicted murderer should receive the death penalty, should know the full extent of the harm caused by the crime, including its impact on the victim's family and community. A State may decide also that the jury should see "a quick glimpse of the life petitioner chose to extinguish," to remind the jury that the person whose life was taken was a unique human being. Given that victim impact evidence is potentially relevant, nothing in the Eighth Amendment commands that States treat it differently than other kinds of relevant evidence. "The Eighth Amendment stands as a shield against those practices and punishments which are either inherently cruel or which so offend the moral consensus of this society as to be deemed `cruel and unusual.'" South Certainly there is no strong societal consensus that a jury may not take into account the loss suffered by a victim's family or that a murder victim must remain a faceless stranger at the penalty phase of a capital trial. Just the opposite is true. Most States have enacted legislation enabling judges and juries to consider victim impact evidence. Ante, at The possibility that this evidence may in some cases be unduly inflammatory does not justify a prophylactic, constitutionally based rule that this evidence may never be admitted. Trial courts routinely exclude evidence that is unduly inflammatory; where inflammatory evidence is improperly admitted, appellate courts carefully review the record to determine whether the error was prejudicial. We do not hold today that victim impact evidence must be admitted, or even that it should be admitted. We hold merely that if a State decides to permit consideration of this evidence, "the Eighth Amendment erects no per se bar." Ante, at 827. If, in a particular case, a witness' testimony or a prosecutor's remark so infects the sentencing proceeding as to render it fundamentally unfair, the defendant may seek appropriate relief under the Due Process Clause of the Fourteenth Amendment. That line was not crossed in this case. The State called as a witness Mary Zvolanek, Nicholas' grandmother. Her testimony was brief. She explained that Nicholas cried for his mother and baby sister and could not understand why they *832 did not come home. I do not doubt that the jurors were moved by this testimony who would not have been? But surely this brief statement did not inflame their passions more than did the facts of the crime: Charisse Christopher was stabbed 41 times with a butcher knife and bled to death; her 2-year-old daughter Lacie was killed by repeated thrusts of that same knife; and 3-year-old Nicholas, despite stab wounds that penetrated completely through his body from front to back, survived only to witness the brutal murders of his mother and baby sister. In light of the jury's unavoidable familiarity with the facts of Payne's vicious attack, I cannot conclude that the additional information provided by Mary Zvolanek's testimony deprived petitioner of due process. Nor did the prosecutor's comments about Charisse and Lacie in the closing argument violate the Constitution. The jury had earlier seen a videotape of the murder scene that included the slashed and bloody corpses of Charisse and Lacie. In arguing that Payne deserved the death penalty, the prosecutor sought to remind the jury that Charisse and Lacie were more than just lifeless bodies on a videotape, that they were unique human beings. The prosecutor remarked that Charisse would never again sing a lullaby to her son and that Lacie would never attend a high school prom. In my view, these statements were permissible. "Murder is the ultimate act of depersonalization." Brief for Justice For All Political Committee et al. as Amici Curiae 3. It transforms a living person with hopes, dreams, and fears into a corpse, thereby taking away all that is special and unique about the person. The Constitution does not preclude a State from deciding to give some of that back. I agree with the Court that and were wrongly decided. The Eighth Amendment does not prohibit a State from choosing to admit evidence concerning a murder victim's personal characteristics or the impact of the crime on the victim's family *833 and community. Booth also addressed another kind of victim impact evidence opinions of the victim's family about the crime, the defendant, and the appropriate sentence. As the Court notes in today's decision, we do not reach this issue as no evidence of this kind was introduced at petitioner's trial. Ante, at 830, n. 2. Nor do we express an opinion as to other aspects of the prosecutor's conduct. As to the victim impact evidence that was introduced, its admission did not violate the Constitution. Accordingly, I join the Court's opinion. |
Justice Scalia | dissenting | false | Vartelas v. Holder | 2012-03-28T00:00:00 | null | https://www.courtlistener.com/opinion/626207/vartelas-v-holder/ | https://www.courtlistener.com/api/rest/v3/clusters/626207/ | 2,012 | 2011-042 | 2 | 6 | 3 | As part of the Illegal Immigration Reform and Immi-
grant Responsibility Act of 1996 (IIRIRA), Congress re-
quired that lawful permanent residents who have commit-
ted certain crimes seek formal “admission” when they
return to the United States from abroad. 8 U.S. C.
§1101(a)(13)(C)(v). This case presents a straightforward
question of statutory interpretation: Does that statute
apply to lawful permanent residents who, like Vartelas,
committed one of the specified offenses before 1996, but
traveled abroad after 1996? Under the proper approach to
determining a statute’s temporal application, the answer
is yes.
I
The text of §1101(a)(13)(C)(v) does not contain a clear
statement answering the question presented here. So
the Court is correct that this case is governed by our
longstanding interpretive principle that, in the absence of
a contrary indication, a statute will not be construed to
have retroactive application. See, e.g., Landgraf v. USI
Film Products, 511 U.S. 244, 280 (1994). The operative
provision of this text—the provision that specifies the act
that it prohibits or prescribes—says that lawful perma-
2 VARTELAS v. HOLDER
SCALIA, J., dissenting
nent residents convicted of offenses similar to Vartelas’s
must seek formal “admission” before they return to the
United States from abroad. Since Vartelas returned to the
United States after the statute’s effective date, the appli-
cation of that text to his reentry does not give the statute a
retroactive effect.
In determining whether a statute applies retroactively,
we should concern ourselves with the statute’s actual
operation on regulated parties, not with retroactivity as an
abstract concept or as a substitute for fairness concerns.
It is impossible to decide whether a statute’s application
is retrospective or prospective without first identifying a
reference point—a moment in time to which the statute’s
effective date is either subsequent or antecedent. (Other-
wise, the obvious question—retroactive in reference to
what?—remains unanswered.) In my view, the identity of
that reference point turns on the activity a statute is
intended to regulate. For any given regulated party, the
reference point (or “retroactivity event”) is the moment at
which the party does what the statute forbids or fails to do
what it requires. See Martin v. Hadix, 527 U.S. 343, 362–
363 (1999) (SCALIA, J., concurring in part and concurring
in judgment); Landgraf, supra, at 291 (SCALIA, J., concur-
ring in judgments). With an identified reference point, the
retroactivity analysis is simple. If a person has engaged in
the primary regulated activity before the statute’s effective
date, then the statute’s application would be retroactive.
But if a person engages in the primary regulated activity
after the statute’s effective date, then the statute’s appli-
cation is prospective only. In the latter case, the interpre-
tive presumption against retroactivity does not bar the
statute’s application.
Under that commonsense approach, this is a relatively
easy case. Although the class of aliens affected by
§1101(a)(13)(C)(v) is defined with respect to past crimes,
the regulated activity is reentry into the United States. By
Cite as: 566 U. S. ____ (2012) 3
SCALIA, J., dissenting
its terms, the statute is all about controlling admission at
the border. It specifies six criteria to identify lawful per-
manent residents who are subject to formal “admission”
procedures, most of which relate to the circumstances of
departure, the trip itself, or reentry. The titles of the
statutory sections containing §1101(a)(13)(C)(v) confirm
its focus on admission, rather than crime: The provision is
located within Title III of IIRIRA (“Inspection, Apprehen-
sion, Detention, Adjudication, and Removal of Inadmissi-
ble and Deportable Aliens”), under Subtitle A (“Revision of
Procedures for Removal of Aliens”), and §301 (“Treating
Persons Present in the United States Without Authori-
zation as Not Admitted”). 110 Stat. 3009–575. And the
specific subsection of IIRIRA at issue (§301(a), entitled
“ ‘Admission’ Defined”) is an amendment to the definition
of “entry” in the general “Definitions” section of the Immi-
gration and Nationality Act (INA). See ante, at 2–3. The
original provision told border officials how to regulate
admission—not how to punish crime—and the amendment
does as well.
Section 1101(a)(13)(C)(v) thus has no retroactive effect
on Vartelas because the reference point here—Vartelas’s
readmission to the United States after a trip abroad—
occurred years after the statute’s effective date. Although
Vartelas cannot change the fact of his prior conviction,
he could have avoided entirely the consequences of
§1101(a)(13)(C)(v) by simply remaining in the United
States or, having left, remaining in Greece. That
§1101(a)(13)(C)(v) had no effect on Vartelas until he per-
formed a post-enactment activity is a clear indication
that the statute’s application is purely prospective. See
Fernandez-Vargas v. Gonzales, 548 U.S. 30, 45, n. 11,
46 (2006) (no retroactive effect where the statute in
question did “not operate on a completed preenactment
act” and instead turned on “a failure to take timely action
that would have avoided application of the new law
4 VARTELAS v. HOLDER
SCALIA, J., dissenting
altogether”).
II
The Court avoids this conclusion by insisting that
“[p]ast misconduct, . . . not present travel, is the wrongful
activity Congress targeted” in §1101(a)(13)(C)(v). Ante,
at 11. That assertion does not, however, have any basis
in the statute’s text or structure, and the Court does not
pretend otherwise. Instead, the Court simply asserts that
Vartelas’s “lawful foreign travel” surely could not be the
“reason for the ‘new disability’ imposed on him.” Ibid.
(emphasis added). But the reason for a prohibition has
nothing to do with whether the prohibition is being ap-
plied to a past rather than a future act. It may be relevant
to other legal inquiries—for example, to whether a legisla-
tive act violates one of the Ex Post Facto Clauses in Article
I, see, e.g., Smith v. Doe, 538 U.S. 84, 92 (2003), or one of
the Due Process Clauses in the Fifth and Fourteenth
Amendments, see, e.g., Williamson v. Lee Optical of Okla.,
Inc., 348 U.S. 483, 487 (1955), or the Takings Clause in
the Fifth Amendment, see, e.g., Kelo v. New London, 545
U.S. 469, 477–483 (2005), or the Obligation of Contracts
Clause in Article I, see, e.g., United States Trust Co. of
N. Y. v. New Jersey, 431 U.S. 1, 29 (1977). But it has no
direct bearing upon whether the statute is retroactive.*
The Court’s failure to differentiate between the statutory-
interpretation question (whether giving certain effect to a
provision would make it retroactive and hence presump-
——————
* I say no direct bearing because if the prospective application of a
statute would raise constitutional doubts because of its effect on pre-
enactment conduct, that would be a reason to presume a legislative
intent not to apply it unless the conduct in question is post-
enactment—that is, to consider it retroactive when the conduct in
question is pre-enactment. See Clark v. Martinez, 543 U.S. 371, 380–
381 (2005). That is not an issue here. If the statute had expressly
made the new “admission” rule applicable to those aliens with prior
convictions, its constitutionality would not be in doubt.
Cite as: 566 U. S. ____ (2012) 5
SCALIA, J., dissenting
tively unintended) and the validity question (whether
giving certain effect to a provision is unlawful) is on full
display in its attempts to distinguish §1101(a)(13)(C)(v)
from similar statutes. Take, for example, the Court’s dis-
cussion of the Racketeer Influenced and Corrupt Organ-
izations Act (RICO). That Act, which targets “patterns
of racketeering,” expressly defines those “patterns” to
include some pre-enactment conduct. See 18 U.S. C.
§1961(5). Courts interpreting RICO therefore need not
consider the presumption against retroactivity; instead,
the cases cited by the majority consider whether RICO
violates the Ex Post Facto Clause. See United States v.
Brown, 555 F.2d 407, 416–417 (CA5 1977); United States
v. Campanale, 518 F.2d 352, 364–365 (CA9 1975)
(per curiam). The Government recognized this distinction
and cited RICO to make a point about the Ex Post Facto
Clause rather than the presumption against retroactivity,
Brief for Respondent 17–18; the Court evidently does not.
The Court’s confident assertion that Congress surely
would not have meant this statute to apply to Vartelas,
whose foreign travel and subsequent return to the United
States were innocent events, ante, at 11, 14, simply begs
the question presented in this case. Ignorance, of course,
is no excuse (ignorantia legis neminem excusat); and his
return was entirely lawful only if the statute before us did
not render it unlawful. Since IIRIRA’s effective date in
1996, lawful permanent residents who have committed
crimes of moral turpitude are forbidden to leave the
United States and return without formally seeking “ad-
mission.” See §1101(a)(13)(C)(v). As a result, Vartelas’s
numerous trips abroad and “uneventful” reentries into the
United States after the passage of IIRIRA, see ante, at 5,
were lawful only if §1101(a)(13)(C)(v) does not apply to
him—which is, of course, precisely the matter in dispute
here.
The Court’s circular reasoning betrays its underlying
6 VARTELAS v. HOLDER
SCALIA, J., dissenting
concern: Because the Court believes that reentry after a
brief trip abroad should be lawful, it will decline to apply a
statute that clearly provides otherwise for certain criminal
aliens. (The same instinct likely produced the Court’s
questionable statutory interpretation in Rosenberg v.
Fleuti, 374 U.S. 449 (1963).) The Court’s test for retroac-
tivity—asking whether the statute creates a “new disabil-
ity” in “respect to past events”—invites this focus on fair-
ness. Understandably so, since it is derived from a Justice
Story opinion interpreting a provision of the New Hamp-
shire Constitution that forbade retroactive laws—a provi-
sion comparable to the Federal Constitution’s ex post facto
prohibition and bearing no relation to the presumption
against retroactivity. What is unfair or irrational (and
hence should be forbidden) has nothing to do with whether
applying a statute to a particular act is prospective (and
thus presumptively intended) or retroactive (and thus
presumptively unintended). On the latter question, the
“new disability in respect to past events” test provides no
meaningful guidance.
I can imagine countless laws that, like §1101(a)(13)
(C)(v), impose “new disabilities” related to “past events”
and yet do not operate retroactively. For example, a stat-
ute making persons convicted of drug crimes ineligible for
student loans. See, e.g., 20 U.S. C. §1091(r)(1). Or laws
prohibiting those convicted of sex crimes from working in
certain jobs that involve repeated contact with minors.
See, e.g., Cal. Penal Code Ann. §290.95(c) (West Supp.
2012). Or laws prohibiting those previously committed
for mental instability from purchasing guns. See, e.g., 18
U.S. C. §922(g)(4). The Court concedes that it would not
consider the last two laws inapplicable to pre-enactment
convictions or commitments. Ante, at 12, n. 7. The Court
does not deny that these statutes impose a “new disability
in respect to past events,” but it distinguishes them based
on the reason for their enactment: These statutes “address
Cite as: 566 U. S. ____ (2012) 7
SCALIA, J., dissenting
dangers that arise postenactment.” Ante, at 13, n. 7. So
much for the new-disability-in-respect-to-past-events test;
it has now become a new-disability-not-designed-to-guard-
against-future-danger test. But why is guarding against
future danger the only reason Congress may wish to regu-
late future action in light of past events? It obviously is
not. So the Court must invent yet another doctrine to
address my first example, the law making persons
convicted of drug crimes ineligible for student loans.
According to the Court, that statute differs from
§1101(a)(13)(C)(v) because it “has a prospective thrust.”
Ante, at 13, n. 7. I cannot imagine what that means, other
than that the statute regulates post-enactment con-
duct. But, of course, so does §1101(a)(13)(C)(v). Rather
than reconciling any of these distinctions with Justice
Story’s formulation of retroactivity, the Court leaves to
lower courts the unenviable task of identifying new-
disabilities-not-designed-to-guard-against-future-danger-
and-also-lacking-a-prospective-thrust.
And anyway, is there any doubt that §1101(a)(13)(C)(v)
is intended to guard against the “dangers that arise
postenactment” from having aliens in our midst who have
shown themselves to have proclivity for crime? Must that
be rejected as its purpose simply because Congress has not
sought to achieve it by all possible means—by ferreting
out such dangerous aliens and going through the expen-
sive and lengthy process of deporting them? At least some
of the post-enactment danger can readily be eliminated by
forcing lawful permanent residents who have committed
certain crimes to undergo formal “admission” procedures
at our borders. Indeed, by limiting criminal aliens’ oppor-
tunities to travel and then return to the United States,
§1101(a)(13)(C)(v) may encourage self-deportation. But all
this is irrelevant. The positing of legislative “purpose” is
always a slippery enterprise compared to the simple
determination of whether a statute regulates a future
8 VARTELAS v. HOLDER
SCALIA, J., dissenting
event—and it is that, rather than the Court’s pronounce-
ment of some forward-looking reason, which governs
whether a statute has retroactive effect.
Finally, I cannot avoid observing that even if the Court’s
concern about the fairness or rationality of applying
§1101(a)(13)(C)(v) to Vartelas were relevant to the statu-
tory interpretation question, that concern is greatly exag-
gerated. In disregard of a federal statute, convicted crimi-
nal Vartelas repeatedly traveled to and from Greece
without ever seeking formal admission at this country’s
borders. When he was finally unlucky enough to be ap-
prehended, and sought discretionary relief from removal
under former §212(c) of the INA, 8 U.S. C. §1182(c) (1994
ed.), the Immigration Judge denying his application found
that Vartelas had made frequent trips to Greece and had
remained there for long periods of time, that he was “a
serious tax evader,” that he had offered testimony that
was “close to incredible,” and that he had not shown hard-
ship to himself or his estranged wife and children should
he be removed. See 620 F.3d 108, 111 (CA2 2010); Brief
for Respondent 5 (internal quotation marks omitted). In
decrying the “harsh penalty” imposed by this statute on
Vartelas, the Court ignores those inconvenient facts.
Ante, at 9. But never mind. Under any sensible approach
to the presumption against retroactivity, these factual
subtleties should be irrelevant to the temporal application
of §1101(a)(13)(C)(v).
* * *
This case raises a plain-vanilla question of statutory
interpretation, not broader questions about frustrated
expectations or fairness. Our approach to answering that
question should be similarly straightforward: We should
determine what relevant activity the statute regulates
(here, reentry); absent a clear statement otherwise, only
such relevant activity which occurs after the statute’s
Cite as: 566 U. S. ____ (2012) 9
SCALIA, J., dissenting
effective date should be covered (here, post-1996 re-
entries). If, as so construed, the statute is unfair or irra-
tional enough to violate the Constitution, that is another
matter entirely, and one not presented here. Our inter-
pretive presumption against retroactivity, however, is just
that—a tool to ascertain what the statute means, not a
license to rewrite the statute in a way the Court considers
more desirable.
I respectfully dissent | As part of the Illegal Immigration Reform and Immi- grant Responsibility Act of 1996 (IIRIRA), Congress re- quired that lawful permanent residents who have commit- ted certain crimes seek formal “admission” when they return to the United States from abroad. 8 U.S. C. This case presents a straightforward question of statutory interpretation: Does that statute apply to lawful permanent residents who, like Vartelas, committed one of the specified offenses before 1996, but traveled abroad after 1996? Under the proper approach to determining a statute’s temporal application, the answer is yes. I The text of does not contain a clear statement answering the question presented here. So the Court is correct that this case is governed by our longstanding interpretive principle that, in the absence of a contrary indication, a statute will not be construed to have retroactive application. See, e.g., The operative provision of this text—the provision that specifies the act that it prohibits or prescribes—says that lawful perma- 2 VARTELAS v. HOLDER SCALIA, J., dissenting nent residents convicted of offenses similar to Vartelas’s must seek formal “admission” before they return to the United States from abroad. Since Vartelas returned to the United States after the statute’s effective date, the appli- cation of that text to his reentry does not give the statute a retroactive effect. In determining whether a statute applies retroactively, we should concern ourselves with the statute’s actual operation on regulated parties, not with retroactivity as an abstract concept or as a substitute for fairness concerns. It is impossible to decide whether a statute’s application is retrospective or prospective without first identifying a reference point—a moment in time to which the statute’s effective date is either subsequent or antecedent. (Other- wise, the obvious question—retroactive in reference to what?—remains unanswered.) In my view, the identity of that reference point turns on the activity a statute is intended to regulate. For any given regulated party, the reference point (or “retroactivity event”) is the moment at which the party does what the statute forbids or fails to do what it requires. See 362– 363 (1999) (SCALIA, J., concurring in part and concurring in judgment); (SCALIA, J., concur- ring in judgments). With an identified reference point, the retroactivity analysis is simple. If a person has engaged in the primary regulated activity before the statute’s effective date, then the statute’s application would be retroactive. But if a person engages in the primary regulated activity after the statute’s effective date, then the statute’s appli- cation is prospective only. In the latter case, the interpre- tive presumption against retroactivity does not bar the statute’s application. Under that commonsense approach, this is a relatively easy case. Although the class of aliens affected by is defined with respect to past crimes, the regulated activity is reentry into the United States. By Cite as: 566 U. S. (2012) 3 SCALIA, J., dissenting its terms, the statute is all about controlling admission at the border. It specifies six criteria to identify lawful per- manent residents who are subject to formal “admission” procedures, most of which relate to the circumstances of departure, the trip itself, or reentry. The titles of the statutory sections containing confirm its focus on admission, rather than crime: The provision is located within Title III of IIRIRA (“Inspection, Apprehen- sion, Detention, Adjudication, and Removal of Inadmissi- ble and Deportable Aliens”), under Subtitle A (“Revision of Procedures for Removal of Aliens”), and (“Treating Persons Present in the United States Without Authori- zation as Not Admitted”). –575. And the specific subsection of IIRIRA at issue ((a), entitled “ ‘Admission’ Defined”) is an amendment to the definition of “entry” in the general “Definitions” section of the Immi- gration and Nationality Act (INA). See ante, at 2–3. The original provision told border officials how to regulate admission—not how to punish crime—and the amendment does as well. Section 1101(a)(13)(C)(v) thus has no retroactive effect on Vartelas because the reference point here—Vartelas’s readmission to the United States after a trip abroad— occurred years after the statute’s effective date. Although Vartelas cannot change the fact of his prior conviction, he could have avoided entirely the consequences of by simply remaining in the United States or, having left, remaining in Greece. That had no effect on Vartelas until he per- formed a post-enactment activity is a clear indication that the statute’s application is purely prospective. See 46 (2006) (no retroactive effect where the statute in question did “not operate on a completed preenactment act” and instead turned on “a failure to take timely action that would have avoided application of the new law 4 VARTELAS v. HOLDER SCALIA, J., dissenting altogether”). II The Court avoids this conclusion by insisting that “[p]ast misconduct, not present travel, is the wrongful activity Congress targeted” in Ante, at 11. That assertion does not, however, have any basis in the statute’s text or structure, and the Court does not pretend otherwise. Instead, the Court simply asserts that Vartelas’s “lawful foreign travel” surely could not be the “reason for the ‘new disability’ imposed on him.” (emphasis added). But the reason for a prohibition has nothing to do with whether the prohibition is being ap- plied to a past rather than a future act. It may be relevant to other legal inquiries—for example, to whether a legisla- tive act violates one of the Ex Post Facto Clauses in Article I, see, e.g., or one of the Due Process Clauses in the Fifth and Fourteenth Amendments, see, e.g., or the Takings Clause in the Fifth Amendment, see, e.g., Kelo v. New London, 545 U.S. 469, 477–483 (2005), or the Obligation of Contracts Clause in Article I, see, e.g., United States Trust Co. of N. But it has no direct bearing upon whether the statute is retroactive.* The Court’s failure to differentiate between the statutory- interpretation question (whether giving certain effect to a provision would make it retroactive and hence presump- —————— * I say no direct bearing because if the prospective application of a statute would raise constitutional doubts because of its effect on pre- enactment conduct, that would be a reason to presume a legislative intent not to apply it unless the conduct in question is post- enactment—that is, to consider it retroactive when the conduct in question is pre-enactment. See 380– 381 (2005). That is not an issue here. If the statute had expressly made the new “admission” rule applicable to those aliens with prior convictions, its constitutionality would not be in doubt. Cite as: 566 U. S. (2012) 5 SCALIA, J., dissenting tively unintended) and the validity question (whether giving certain effect to a provision is unlawful) is on full display in its attempts to distinguish from similar statutes. Take, for example, the Court’s dis- cussion of the Racketeer Influenced and Corrupt Organ- izations Act (RICO). That Act, which targets “patterns of racketeering,” expressly defines those “patterns” to include some pre-enactment conduct. See 18 U.S. C. Courts interpreting RICO therefore need not consider the presumption against retroactivity; instead, the cases cited by the majority consider whether RICO violates the Ex Post Facto Clause. See United States v. Brown, ; United States v. Campanale, (per curiam). The Government recognized this distinction and cited RICO to make a point about the Ex Post Facto Clause rather than the presumption against retroactivity, Brief for Respondent 17–18; the Court evidently does not. The Court’s confident assertion that Congress surely would not have meant this statute to apply to Vartelas, whose foreign travel and subsequent return to the United States were innocent events, ante, at 11, 14, simply begs the question presented in this case. Ignorance, of course, is no excuse (ignorantia legis neminem excusat); and his return was entirely lawful only if the statute before us did not render it unlawful. Since IIRIRA’s effective date in 1996, lawful permanent residents who have committed crimes of moral turpitude are forbidden to leave the United States and return without formally seeking “ad- mission.” See As a result, Vartelas’s numerous trips abroad and “uneventful” reentries into the United States after the passage of IIRIRA, see ante, at 5, were lawful only if does not apply to him—which is, of course, precisely the matter in dispute here. The Court’s circular reasoning betrays its underlying 6 VARTELAS v. HOLDER SCALIA, J., dissenting concern: Because the Court believes that reentry after a brief trip abroad should be lawful, it will decline to apply a statute that clearly provides otherwise for certain criminal aliens.) The Court’s test for retroac- tivity—asking whether the statute creates a “new disabil- ity” in “respect to past events”—invites this focus on fair- ness. Understandably so, since it is derived from a Justice Story opinion interpreting a provision of the New Hamp- shire Constitution that forbade retroactive laws—a provi- sion comparable to the Federal Constitution’s ex post facto prohibition and bearing no relation to the presumption against retroactivity. What is unfair or irrational (and hence should be forbidden) has nothing to do with whether applying a statute to a particular act is prospective (and thus presumptively intended) or retroactive (and thus presumptively unintended). On the latter question, the “new disability in respect to past events” test provides no meaningful guidance. I can imagine countless laws that, like (C)(v), impose “new disabilities” related to “past events” and yet do not operate retroactively. For example, a stat- ute making persons convicted of drug crimes ineligible for student loans. See, e.g., 20 U.S. C. Or laws prohibiting those convicted of sex crimes from working in certain jobs that involve repeated contact with minors. See, e.g., Cal. Penal Code Ann. §0.95(c) (West Supp. 2012). Or laws prohibiting those previously committed for mental instability from purchasing guns. See, e.g., 18 U.S. C. §2(g)(4). The Court concedes that it would not consider the last two laws inapplicable to pre-enactment convictions or commitments. Ante, at 12, n. 7. The Court does not deny that these statutes impose a “new disability in respect to past events,” but it distinguishes them based on the reason for their enactment: These statutes “address Cite as: 566 U. S. (2012) 7 SCALIA, J., dissenting dangers that arise postenactment.” Ante, at 13, n. 7. So much for the new-disability-in-respect-to-past-events test; it has now become a new-disability-not-designed-to-guard- against-future-danger test. But why is guarding against future danger the only reason Congress may wish to regu- late future action in light of past events? It obviously is not. So the Court must invent yet another doctrine to address my first example, the law making persons convicted of drug crimes ineligible for student loans. According to the Court, that statute differs from because it “has a prospective thrust.” Ante, at 13, n. 7. I cannot imagine what that means, other than that the statute regulates post-enactment con- duct. But, of course, so does Rather than reconciling any of these distinctions with Justice Story’s formulation of retroactivity, the Court leaves to lower courts the unenviable task of identifying new- disabilities-not-designed-to-guard-against-future-danger- and-also-lacking-a-prospective-thrust. And anyway, is there any doubt that is intended to guard against the “dangers that arise postenactment” from having aliens in our midst who have shown themselves to have proclivity for crime? Must that be rejected as its purpose simply because Congress has not sought to achieve it by all possible means—by ferreting out such dangerous aliens and going through the expen- sive and lengthy process of deporting them? At least some of the post-enactment danger can readily be eliminated by forcing lawful permanent residents who have committed certain crimes to undergo formal “admission” procedures at our borders. Indeed, by limiting criminal aliens’ oppor- tunities to travel and then return to the United States, may encourage self-deportation. But all this is irrelevant. The positing of legislative “purpose” is always a slippery enterprise compared to the simple determination of whether a statute regulates a future 8 VARTELAS v. HOLDER SCALIA, J., dissenting event—and it is that, rather than the Court’s pronounce- ment of some forward-looking reason, which governs whether a statute has retroactive effect. Finally, I cannot avoid observing that even if the Court’s concern about the fairness or rationality of applying to Vartelas were relevant to the statu- tory interpretation question, that concern is greatly exag- gerated. In disregard of a federal statute, convicted crimi- nal Vartelas repeatedly traveled to and from Greece without ever seeking formal admission at this country’s borders. When he was finally unlucky enough to be ap- prehended, and sought discretionary relief from removal under former of the INA, 8 U.S. C. (1994 ed.), the Immigration Judge denying his application found that Vartelas had made frequent trips to Greece and had remained there for long periods of time, that he was “a serious tax evader,” that he had offered testimony that was “close to incredible,” and that he had not shown hard- ship to himself or his estranged wife and children should he be removed. See ; Brief for Respondent 5 (internal quotation marks omitted). In decrying the “harsh penalty” imposed by this statute on Vartelas, the Court ignores those inconvenient facts. Ante, at 9. But never mind. Under any sensible approach to the presumption against retroactivity, these factual subtleties should be irrelevant to the temporal application of * * * This case raises a plain-vanilla question of statutory interpretation, not broader questions about frustrated expectations or fairness. Our approach to answering that question should be similarly straightforward: We should determine what relevant activity the statute regulates (here, reentry); absent a clear statement otherwise, only such relevant activity which occurs after the statute’s Cite as: 566 U. S. (2012) 9 SCALIA, J., dissenting effective date should be covered (here, post-1996 re- entries). If, as so construed, the statute is unfair or irra- tional enough to violate the Constitution, that is another matter entirely, and one not presented here. Our inter- pretive presumption against retroactivity, however, is just that—a tool to ascertain what the statute means, not a license to rewrite the statute in a way the Court considers more desirable. I respectfully dissent |
Justice Rehnquist | majority | false | Robinson v. Neil | 1973-02-26T00:00:00 | null | https://www.courtlistener.com/opinion/108660/robinson-v-neil/ | https://www.courtlistener.com/api/rest/v3/clusters/108660/ | 1,973 | 1972-039 | 2 | 9 | 0 | In 1962 petitioner was tried and convicted in the Chattanooga municipal court of three counts of assault and battery in violation of a city ordinance. He was fined $50 and costs on each count. He was later indicated by the grand jury of Hamilton County, Tennessee, which, out of the same circumstances giving rise to the municipal trial, charged him with three offenses of assault with intent to commit murder in violation of state law. The petitioner pleaded guilty to the state charges and received consecutive sentences of three to 10 years for two offenses and three to five years for the third offense. He is presently in the custody of the respondent warden of the Tennessee State Penitentiary.
*506 In 1966 the petitioner unsuccessfully sought habeas corpus relief in state courts on the ground that the second convictions for state offenses violated his federal constitutional guarantee against twice being placed in jeopardy for the same offense. In 1967 federal courts denied a similar request for habeas corpus relief. Robinson v. Henderson, 268 F. Supp. 349 (ED Tenn. 1967), aff'd, 391 F.2d 933 (CA6 1968). In 1970 the petitioner renewed his claims for habeas relief, basing his arguments on this Court's intervening decisions in Benton v. Maryland, 395 U.S. 784 (1969), and Waller v. Florida, 397 U.S. 387 (1970). Holding that Waller was to be accorded retrospective effect, the District Court granted the petitioner habeas corpus relief. 320 F. Supp. 894 (ED Tenn. 1971). The Sixth Circuit reversed (452 F.2d 370 (1971)) and we granted certiorari to decide the retroactivity of Waller v. Florida. 406 U.S. 916 (1972).
The Fifth Amendment's guarantee that no person be twice put in jeopardy for the same offense was first held binding on the States in Benton v. Maryland, supra. Our subsequent decision in Waller v. Florida, supra, held that the scope of this guarantee precluded the recognition of the "dual sovereignty" doctrine with respect to separate state and municipal prosecutions. Waller involved the theft of a mural from the City Hall of St. Petersburg, Florida. The petitioner there was first tried and convicted of violating city ordinances with respect to the destruction of city property and breach of the peace. Subsequently, he was convicted of grand larceny in violation of state law involving the same theft. The Court stated:
"the Florida courts were in error to the extent of holding that
" `even if a person has been tried in a municipal court for the identical offense with which he is charged *507 in a state court, this would not be a bar to the prosecution of such person in the proper state court.' " 397 U.S., at 395.
Prior to this Court's 1965 decision in Linkletter v. Walker, 381 U.S. 618, there would have been less doubt concerning the retroactivity of the Waller holding. For, until that time, both the common law and our own decisions recognized a general rule of retrospective effect for the constitutional decisions of this Court, e. g., Norton v. Shelby County, 118 U.S. 425, 442 (1886), subject to limited exceptions of a nature such as those stated in Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371 (1940). In Linkletter, the Court, declaring that it was charting new ground (381 U. S., at 628 and n. 13), held that with respect to new constitutional interpretations involving criminal rights "the Constitution neither prohibits nor requires retrospective effect." Id., at 629. Linkletter and succeeding cases established a set of factors for determining which constitutional rules were to be accorded retrospective and which prospective effect only.[*] The District Court and the Sixth Circuit in this case applied the factors enunciated by these cases to the Waller holding. The Sixth Circuit held, contrary to the conclusion of the District Court, that Waller is not to be applied retroactively.
We do not believe that this case readily lends itself to the analysis established in Linkletter. Certainly, there is nothing in Linkletter or those cases following it to indicate that all rules and constitutional interpretations arising under the first eight Amendments must be subjected to the analysis there enunciated. Linkletter itself announced an exception to the general rule of retroactivity *508 in a decision announcing that the exclusionary rule of Mapp v. Ohio, 367 U.S. 643 (1961), would be given prospective effect only. Linkletter, and the other cases relied upon by the Sixth Circuit, dealt with those constitutional interpretations bearing on the use of evidence or on a particular mode of trial. Those procedural rights and methods of conducting trials, however, do not encompass all of the rights found in the first eight Amendments. Guarantees that do not relate to these procedural rules cannot, for retroactivity purposes, be lumped conveniently together in terms of analysis. For the purpose and effect of the various constitutional guarantees vary sufficiently among themselves so as to affect the necessity for prospective rather than retrospective application.
Linkletter indicated, for instance, that only those procedural rules affecting "the very integrity of the fact-finding process" would be given retrospective effect. 381 U.S., at 639. In terms of some nonprocedural guarantees, this test is simply not appropriate. In Furman v. Georgia, 408 U.S. 238 (1972), for example, this Court held that in the situation there presented imposition of the death penalty was not constitutionally permissible. Yet, while this holding does not affect the integrity of the factfinding process, we have not hesitated to apply it retrospectively without regard to whether the rule meets the Linkletter criteria. E. g., Walker v. Georgia, 408 U.S. 936.
The prohibition against being placed in double jeopardy is likewise not readily susceptible of analysis under the Linkletter line of cases. Although the Court has not handed down a fully reasoned opinion on the retroactivity of Benton v. Maryland, it has indicated that it is retroactive without examination of the Linkletter criteria. North Carolina v. Pearce, 395 U.S. 711 (1969); Ashe v. Swenson, 397 U.S. 436, 437 n. 1 (1970). These *509 decisions do not directly control the question of whether Waller should be given retrospective effect but they bear upon its disposition.
The guarantee against double jeopardy is significantly different from procedural guarantees held in the Linkletter line of cases to have prospective effect only. While this guarantee, like the others, is a constitutional right of the criminal defendant, its practical result is to prevent a trial from taking place at all, rather than to prescribe procedural rules that govern the conduct of a trial. A number of the constitutional rules applied prospectively only under the Linkletter cases were found not to affect the basic fairness of the earlier trial, but to have been directed instead to collateral purposes such as the deterrence of unlawful police conduct, Mapp v. Ohio, supra. In Waller, however, the Court's ruling was squarely directed to the prevention of the second trial's taking place at all, even though it might have been conducted with a scrupulous regard for all of the constitutional procedural rights of the defendant.
We would not suggest that the distinction that we draw is an ironclad one that will invariably result in the easy classification of cases in one category or the other. The element of reliance embodied in the Linkletter analysis will not be wholly absent in the case of constitutional decisions not related to trial procedure, as indeed this case when contrasted with Furman illustrates.
In Furman v. Georgia, supra, our mandate was tailored so as to deny to the State only the authority to impose a punishment that we held unconstitutional, without the necessity of a redetermination of the factual question of whether the offense had in fact been committed. Thus, the prejudice to the State resulting from the necessity of an entirely new trial because of procedures newly found to be constitutionally defective, with the *510 attendant difficulties of again assembling witnesses whose memories would of necessity be dimmer for the second trial than for the first, was not present. That which was constitutionally invalid could be isolated and excised without requiring the State to begin the entire factfinding process anew.
The application of Waller retrospectively may, on the other hand, result in a form of prejudice to the State because, in reliance upon the "dual sovereignty" analogy, the municipal prosecution may have occurred first and the sentence already have been served prior to the commencement of the state prosecution. If the offense involved was a serious one under state law, as it apparently was in this case, the defendant may have been unintentionally accorded a relatively painless form of immunity from the state prosecution. But the Court's opinion in Waller makes clear that the analogy between state and municipal prosecutions, and federal and state prosecutions permitted in Bartkus v. Illinois, 359 U.S. 121 (1959), had never been sanctioned by this Court and was not analytically sound. Since the issue did not assume federal constitutional proportions until after Benton v. Maryland held the Double Jeopardy Clause applicable to the States, this Court had not earlier had occasion to squarely pass on the issue. But its decision in Waller cannot be said to have marked a departure from past decisions of this Court. Therefore, while Waller-type cases may involve a form of practical prejudice to the State over and above the refusal to permit the trial that the Constitution bars, the justifiability of the State's reliance on lower court decisions supporting the dual sovereignty analogy was a good deal more dubious than the justification for reliance that has been given weight in our Linkletter line of cases. We intimate no view as to what weight should be accorded *511 to reliance by the State that was justifiable under the Linkletter test in determining retroactivity of a nonprocedural constitutional decision such as Waller.
We hold, therefore, that our decision in Waller v. Florida is to be accorded full retroactive effect. We refrain from an outright reversal of the judgment below, however, because statements of counsel at oral argument raised the issue of whether the state and municipal prosecutions were actually for the same offense. We therefore vacate the judgment of the Court of Appeals and remand the case so that respondent may have an opportunity to present this issue there or in the District Court.
It is so ordered.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE DOUGLAS and MR. JUSTICE MARSHALL concur.
Although I otherwise join the opinion of the Court, I would reverse the judgment of the Court of Appeals outright. I adhere to my view that, regardless of the similarity of the offenses, the Double Jeopardy Clause of the Fifth Amendment, which is applicable to the States through the Fourteenth Amendment, Benton v. Maryland, 395 U.S. 784 (1969), requires the prosecution, except in most limited circumstances not present here, "to join at one trial all the charges against a defendant that grow out of a single criminal act, occurrence, episode, or transaction." Ashe v. Swenson, 397 U.S. 436, 453-454 (1970) (BRENNAN, J., concurring); see Grubb v. Oklahoma, post, p. 1017 (1972) (BRENNAN, J., dissenting); Miller v. Oregon, 405 U.S. 1047 (1972) (BRENNAN, J., dissenting); Harris v. Washington, 404 U.S. 55, 57 (1971) (separate statement of DOUGLAS, BRENNAN, and MARSHALL, JJ.). Under this "same transaction" test, all charges against petitioner should have been brought in a single prosecution.
| In 1962 petitioner was tried and convicted in the Chattanooga municipal court of three counts of assault and battery in violation of a city ordinance. He was fined $50 and costs on each count. He was later indicated by the grand jury of Hamilton County, Tennessee, which, out of the same circumstances giving rise to the municipal trial, charged him with three offenses of assault with intent to commit murder in violation of state law. The petitioner pleaded guilty to the state charges and received consecutive sentences of three to 10 years for two offenses and three to five years for the third offense. He is presently in the custody of the respondent warden of the Tennessee State Penitentiary. *506 In 1966 the petitioner unsuccessfully sought habeas corpus relief in state courts on the ground that the second convictions for state offenses violated his federal constitutional guarantee against twice being placed in jeopardy for the same offense. In federal courts denied a similar request for habeas corpus relief. aff'd, In 1970 the petitioner renewed his claims for habeas relief, basing his arguments on this Court's intervening decisions in and Holding that Waller was to be accorded retrospective effect, the District Court granted the petitioner habeas corpus relief. The Sixth Circuit reversed ) and we granted certiorari to decide the retroactivity of The Fifth Amendment's guarantee that no person be twice put in jeopardy for the same offense was first held binding on the States in Our subsequent decision in held that the scope of this guarantee precluded the recognition of the "dual sovereignty" doctrine with respect to separate state and municipal prosecutions. Waller involved the theft of a mural from the City Hall of St. Petersburg, The petitioner there was first tried and convicted of violating city ordinances with respect to the destruction of city property and breach of the peace. Subsequently, he was convicted of grand larceny in violation of state law involving the same theft. The Court stated: "the courts were in error to the extent of holding that " `even if a person has been tried in a municipal court for the identical offense with which he is charged *507 in a state court, this would not be a bar to the prosecution of such person in the proper state court.' " Prior to this Court's 1965 decision in there would have been less doubt concerning the retroactivity of the Waller holding. For, until that time, both the common law and our own decisions recognized a general rule of retrospective effect for the constitutional decisions of this Court, e. g., subject to limited exceptions of a nature such as those stated in Chicot County Drainage In Linkletter, the Court, declaring that it was charting new ground ( and n. 13), held that with respect to new constitutional interpretations involving criminal rights "the Constitution neither prohibits nor requires retrospective " Linkletter and succeeding cases established a set of factors for determining which constitutional rules were to be accorded retrospective and which prospective effect only.[*] The District Court and the Sixth Circuit in this case applied the factors enunciated by these cases to the Waller holding. The Sixth Circuit held, contrary to the conclusion of the District Court, that Waller is not to be applied retroactively. We do not believe that this case readily lends itself to the analysis established in Linkletter. Certainly, there is nothing in Linkletter or those cases following it to indicate that all rules and constitutional interpretations arising under the first eight Amendments must be subjected to the analysis there enunciated. Linkletter itself announced an exception to the general rule of retroactivity *508 in a decision announcing that the exclusionary rule of would be given prospective effect only. Linkletter, and the other cases relied upon by the Sixth Circuit, dealt with those constitutional interpretations bearing on the use of evidence or on a particular mode of trial. Those procedural rights and methods of conducting trials, however, do not encompass all of the rights found in the first eight Amendments. Guarantees that do not relate to these procedural rules cannot, for retroactivity purposes, be lumped conveniently together in terms of analysis. For the purpose and effect of the various constitutional guarantees vary sufficiently among themselves so as to affect the necessity for prospective rather than retrospective application. Linkletter indicated, for instance, that only those procedural rules affecting "the very integrity of the fact-finding process" would be given retrospective In terms of some nonprocedural guarantees, this test is simply not appropriate. In for example, this Court held that in the situation there presented imposition of the death penalty was not constitutionally permissible. Yet, while this holding does not affect the integrity of the factfinding process, we have not hesitated to apply it retrospectively without regard to whether the rule meets the Linkletter criteria. E. g., The prohibition against being placed in double jeopardy is likewise not readily susceptible of analysis under the Linkletter line of cases. Although the Court has not handed down a fully reasoned opinion on the retroactivity of it has indicated that it is retroactive without examination of the Linkletter criteria. North ; These *509 decisions do not directly control the question of whether Waller should be given retrospective effect but they bear upon its disposition. The guarantee against double jeopardy is significantly different from procedural guarantees held in the Linkletter line of cases to have prospective effect only. While this guarantee, like the others, is a constitutional right of the criminal defendant, its practical result is to prevent a trial from taking place at all, rather than to prescribe procedural rules that govern the conduct of a trial. A number of the constitutional rules applied prospectively only under the Linkletter cases were found not to affect the basic fairness of the earlier trial, but to have been directed instead to collateral purposes such as the deterrence of unlawful police conduct, In Waller, however, the Court's ruling was squarely directed to the prevention of the second trial's taking place at all, even though it might have been conducted with a scrupulous regard for all of the constitutional procedural rights of the defendant. We would not suggest that the distinction that we draw is an ironclad one that will invariably result in the easy classification of cases in one category or the other. The element of reliance embodied in the Linkletter analysis will not be wholly absent in the case of constitutional decisions not related to trial procedure, as indeed this case when contrasted with Furman illustrates. In our mandate was tailored so as to deny to the State only the authority to impose a punishment that we held unconstitutional, without the necessity of a redetermination of the factual question of whether the offense had in fact been committed. Thus, the prejudice to the State resulting from the necessity of an entirely new trial because of procedures newly found to be constitutionally defective, with the *510 attendant difficulties of again assembling witnesses whose memories would of necessity be dimmer for the second trial than for the first, was not present. That which was constitutionally invalid could be isolated and excised without requiring the State to begin the entire factfinding process anew. The application of Waller retrospectively may, on the other hand, result in a form of prejudice to the State because, in reliance upon the "dual sovereignty" analogy, the municipal prosecution may have occurred first and the sentence already have been served prior to the commencement of the state prosecution. If the offense involved was a serious one under state law, as it apparently was in this case, the defendant may have been unintentionally accorded a relatively painless form of immunity from the state prosecution. But the Court's opinion in Waller makes clear that the analogy between state and municipal prosecutions, and federal and state prosecutions permitted in had never been sanctioned by this Court and was not analytically sound. Since the issue did not assume federal constitutional proportions until after held the Double Jeopardy Clause applicable to the States, this Court had not earlier had occasion to squarely pass on the issue. But its decision in Waller cannot be said to have marked a departure from past decisions of this Court. Therefore, while Waller-type cases may involve a form of practical prejudice to the State over and above the refusal to permit the trial that the Constitution bars, the justifiability of the State's reliance on lower court decisions supporting the dual sovereignty analogy was a good deal more dubious than the justification for reliance that has been given weight in our Linkletter line of cases. We intimate no view as to what weight should be accorded *511 to reliance by the State that was justifiable under the Linkletter test in determining retroactivity of a nonprocedural constitutional decision such as Waller. We hold, therefore, that our decision in is to be accorded full retroactive We refrain from an outright reversal of the judgment below, however, because statements of counsel at oral argument raised the issue of whether the state and municipal prosecutions were actually for the same offense. We therefore vacate the judgment of the Court of Appeals and remand the case so that respondent may have an opportunity to present this issue there or in the District Court. It is so ordered. MR. JUSTICE BRENNAN, with whom MR. JUSTICE DOUGLAS and MR. JUSTICE MARSHALL concur. Although I otherwise join the opinion of the Court, I would reverse the judgment of the Court of Appeals outright. I adhere to my view that, regardless of the similarity of the offenses, the Double Jeopardy Clause of the Fifth Amendment, which is applicable to the States through the Fourteenth Amendment, requires the prosecution, except in most limited circumstances not present here, "to join at one trial all the charges against a defendant that grow out of a single criminal act, occurrence, episode, or transaction." ; see Grubb v. Oklahoma, post, p. 1017 ; ; Under this "same transaction" test, all charges against petitioner should have been brought in a single prosecution. |
Justice Breyer | majority | false | Merck & Co. v. Reynolds | 2010-04-27T00:00:00 | null | https://www.courtlistener.com/opinion/145292/merck-co-v-reynolds/ | https://www.courtlistener.com/api/rest/v3/clusters/145292/ | 2,010 | 2009-043 | 2 | 9 | 0 | This case concerns the timeliness of a complaint filed in
a private securities fraud action. The complaint was
timely if filed no more than two years after the plaintiffs
“discover[ed] the facts constituting the violation.” 28
U.S. C. §1658(b)(1). Construing this limitations statute
for the first time, we hold that a cause of action accrues (1)
when the plaintiff did in fact discover, or (2) when a rea
sonably diligent plaintiff would have discovered, “the facts
constituting the violation”—whichever comes first. We
also hold that the “facts constituting the violation” include
the fact of scienter, “a mental state embracing intent to
deceive, manipulate, or defraud,” Ernst & Ernst v.
Hochfelder, 425 U.S. 185, 194, n. 12 (1976). Applying this
standard, we affirm the Court of Appeals’ determination
that the complaint filed here was timely.
I
The action before us involves a claim by a group of inves
tors (the plaintiffs, respondents here) that Merck & Co.
and others (the petitioners here, hereinafter Merck) know
ingly misrepresented the risks of heart attacks accompany
2 MERCK & CO. v. REYNOLDS
Opinion of the Court
ing the use of Merck’s pain-killing drug, Vioxx (leading to
economic losses when the risks later became apparent).
The plaintiffs brought an action for securities fraud under
§10(b) of the Securities Exchange Act of 1934. See 48 Stat.
891, as amended, 15 U.S. C. §78j(b); SEC Rule 10b–5, 17
CFR §240.10b–5(b) (2009); Dura Pharmaceuticals, Inc. v.
Broudo, 544 U.S. 336, 341–342 (2005).
The applicable statute of limitations provides that a
“private right of action” that, like the present action,
“involves a claim of fraud, deceit, manipulation, or con
trivance in contravention of a regulatory requirement
concerning the securities laws . . . may be brought not
later than the earlier of—
“(1) 2 years after the discovery of the facts constituting
the violation; or
“(2) 5 years after such violation.” 28 U.S. C. §1658(b).
The complaint in this case was filed on November 6,
2003, and no one doubts that it was filed within five years
of the alleged violation. Therefore, the critical date for
timeliness purposes is November 6, 2001—two years
before this complaint was filed. Merck claims that before
this date the plaintiffs had (or should have) discovered the
“facts constituting the violation.” If so, by the time the
plaintiffs filed their complaint, the 2-year statutory period
in §1658(b)(1) had run. The plaintiffs reply that they had
not, and could not have, discovered by the critical date
those “facts,” particularly not the facts related to scienter,
and that their complaint was therefore timely.
A
We first set out the relevant pre-November 2001 facts,
as we have gleaned them from the briefs, the record, and
the opinions below.
1. 1990’s. In the mid-1990’s Merck developed Vioxx. In
1999 the Food and Drug Administration (FDA) approved it
for prescription use. Vioxx suppresses pain by inhibiting
Cite as: 559 U. S. ____ (2010) 3
Opinion of the Court
the body’s production of an enzyme called COX–2 (cyclooxy-
genase-2). COX–2 is associated with pain and inflamma-
tion. Unlike some other anti-inflammatory drugs in its
class like aspirin, ibuprofen, and naproxen, Vioxx does not
inhibit production of a second enzyme called COX–1
(cyclooxygenase-1). COX–1 plays a part in the functioning
of the gastrointestinal tract and also in platelet aggregation
(associated with blood clots). App. 50–51.
2. March 2000. Merck announced the results of a study,
called the “VIGOR” study. Id., at 291–294. The study
compared Vioxx with another painkiller, naproxen. The
study showed that persons taking Vioxx suffered fewer
gastrointestinal side effects (as Merck had hoped). But
the study also revealed that approximately 4 out of every
1,000 participants who took Vioxx suffered heart attacks,
compared to only 1 per 1,000 participants who took
naproxen. Id., at 296, 306; see Bombardier et al., Com-
parison of Upper Gastrointestinal Toxicity of Rofecoxib
and Naproxen in Patients with Rheumatoid Arthritis, 343
New England J. Medicine 1520, 1523, 1526–1527 (2000).
Merck’s press release acknowledged VIGOR’s adverse
cardiovascular data. But Merck said that these data were
“consistent with naproxen’s ability to block platelet aggre-
gation.” App. 291. Merck noted that, since “Vioxx, like all
COX–2 selective medicines, does not block platelet aggre-
gation[, it] would not be expected to have similar effects.”
Ibid. And Merck added that “safety data from all other
completed and ongoing clinical trials . . . showed no indica-
tion of a difference in the incidence of thromboembolic
events between Vioxx” and either a placebo or comparable
drugs. Id., at 293 (emphasis deleted).
This theory—that VIGOR’s troubling cardiovascular
findings might be due to the absence of a benefit conferred
by naproxen rather than due to a harm caused by Vioxx—
later became known as the “naproxen hypothesis.” In
advancing that hypothesis, Merck acknowledged that the
4 MERCK & CO. v. REYNOLDS
Opinion of the Court
naproxen benefit “had not been observed previously.” Id.,
at 291. Journalists and stock market analysts reported all
of the above—the positive gastrointestinal results, the
troubling cardiovascular finding, the naproxen hypothesis,
and the fact that the naproxen hypothesis was unproved.
See id., at 355–391, 508–557.
3. February 2001 to August 2001. Public debate about
the naproxen hypothesis continued. In February 2001, the
FDA’s Arthritis Advisory Committee convened to consider
Merck’s request that the Vioxx label be changed to reflect
VIGOR’s positive gastrointestinal findings. The VIGOR
cardiovascular findings were also discussed. Id., at 392–
395, 558–577. In May 2001, a group of plaintiffs filed a
products-liability lawsuit against Merck, claiming that
“Merck’s own research” had demonstrated that “users of
Vioxx were four times as likely to suffer heart attacks as
compared to other less expensive, medications.” Id., at
869. In August 2001, the Journal of the American Medical
Association wrote that the available data raised a “cau
tionary flag” and strongly urged that “a trial specifically
assessing cardiovascular risk” be done. Id., at 331–332;
Mukherjee, Nissen, & Topol, Risk of Cardiovascular
Events Associated with Selective Cox-2 Inhibitors, 286
JAMA 954 (2001). At about the same time, Bloomberg
News quoted a Merck scientist who claimed that Merck
had “additional data” that were “very, very reassuring,”
and Merck issued a press release stating that it stood
“behind the overall and cardiovascular safety profile . . . of
Vioxx.” App. 434, 120 (emphasis deleted; internal quota
tion marks omitted).
4. September and October 2001. The FDA sent Merck a
warning letter released to the public on September 21,
2001. It said that, in respect to cardiovascular risks,
Merck’s Vioxx marketing was “false, lacking in fair bal
ance, or otherwise misleading.” Id., at 339. At the same
time, the FDA acknowledged that the naproxen hypothesis
Cite as: 559 U. S. ____ (2010) 5
Opinion of the Court
was a “possible explanation” of the VIGOR results. Id., at
340. But it found that Merck’s “promotional campaign
selectively present[ed]” that hypothesis without adequately
acknowledging “another reasonable explanation,” namely,
“that Vioxx may have pro-thrombotic [i.e., adverse cardio
vascular] properties.” Ibid. The FDA ordered Merck to
send healthcare providers a corrective letter. Id., at 353.
After the FDA letter was released, more products
liability lawsuits were filed. See id., at 885–956. Merck’s
share price fell by 6.6% over several days. See id., at 832.
By October 1, the price rebounded. See ibid. On October
9, 2001, the New York Times said that Merck had reexam
ined its own data and “found no evidence that Vioxx in
creased the risk of heart attacks.” App. 504. It quoted the
president of Merck Research Laboratories as positing
“ ‘two possible interpretations’ ”: “ ‘Naproxen lowers the
heart attack rate, or Vioxx raises it.’ ” Ibid. Stock ana
lysts, while reporting the warning letter, also noted that
the FDA had not denied that the naproxen hypothesis
remained an unproven but possible explanation. See id.,
at 614, 626, 628.
B
We next set forth three important events that occurred
after the critical date.
1. October 2003. The Wall Street Journal published the
results of a Merck-funded Vioxx study conducted at Bos
ton’s Brigham and Women’s Hospital. After examining
the medical records of more than 50,000 Medicare pa
tients, researchers found that those given Vioxx for 30-to
90 days were 37% more likely to have suffered a heart
attack than those given either a different painkiller or no
painkiller at all. Id., at 164–165. (That is to say, if pa
tients given a different painkiller or given no painkiller at
all suffered 10 heart attacks, then the same number of
patients given Vioxx would suffer 13 or 14 heart attacks.)
6 MERCK & CO. v. REYNOLDS
Opinion of the Court
Merck defended Vioxx and pointed to the study’s limita
tions. Id., at 165–167.
2. September 30, 2004. Merck withdrew Vioxx from the
market. It said that a new study had found “an increased
risk of confirmed cardiovascular events beginning after 18
months of continuous therapy.” Id., at 182 (internal quo
tation marks omitted). A Merck representative publicly
described the results as “totally unexpected.” Id., at 186.
Merck’s shares fell by 27% the same day. Id., at 185, 856.
3. November 1, 2004. The Wall Street Journal published
an article stating that “internal Merck e-mails and mar
keting materials as well as interviews with outside scien
tists show that the company fought forcefully for years to
keep safety concerns from destroying the drug’s commer
cial prospects.” Id., at 189–190. The article said that an
early e-mail from Merck’s head of research had said that
the VIGOR “results showed that the cardiovascular events
‘are clearly there,’ ” that it was “ ‘a shame but . . . a low
incidence,’ ” and that it “ ‘is mechanism based as we wor
ried it was.’ ” Id., at 192. It also said that Merck had
given its salespeople instructions to “ ‘DODGE’ ” questions
about Vioxx’s cardiovascular effects. Id., at 193.
C
The plaintiffs filed their complaint on November 6,
2003. As subsequently amended, the complaint alleged
that Merck had defrauded investors by promoting the
naproxen hypothesis, knowing the hypothesis was false.
It said, for example, that Merck “knew, at least as early as
1996, of the serious safety issues with Vioxx,” and that a
“1998 internal Merck clinical trial . . . revealed that . . .
serious cardiovascular events . . . occurred six times more
frequently in patients given Vioxx than in patients given a
different arthritis drug or placebo.” Id., at 56, 58–59
(emphasis and capitalization deleted).
Merck, believing that the plaintiffs knew or should have
Cite as: 559 U. S. ____ (2010) 7
Opinion of the Court
known the “facts constituting the violation” at least two
years earlier, moved to dismiss the complaint, saying it
was filed too late. The District Court granted the motion.
The court held that the (March 2001) VIGOR study, the
(September 2001) FDA warning letter, and Merck’s (Octo
ber 2001) response should have alerted the plaintiffs to a
“possibility that Merck had knowingly misrepresented
material facts” no later than October 9, 2001, thus placing
the plaintiffs on “inquiry notice” to look further. In re
Merck & Co. Securities, Derivative & “ERISA” Litigation,
483 F. Supp. 2d 407, 423 (NJ 2007) (emphasis added).
Finding that the plaintiffs had failed to “show that they
exercised reasonable due diligence but nevertheless were
unable to discover their injuries,” the court took October 9,
2001, as the date that the limitations period began to run
and therefore found the complaint untimely. Id., at 424.
The Court of Appeals for the Third Circuit reversed. A
majority held that the pre-November 2001 events, while
constituting “storm warnings,” did not suggest much by
way of scienter, and consequently did not put the plaintiffs
on “inquiry notice,” requiring them to investigate further.
In re Merck & Co. Securities, Derivative & “ERISA” Litiga
tion, 543 F.3d 150, 172 (2008). A dissenting judge consid
ered the pre-November 2001 events sufficient to start the
2-year clock running. Id., at 173 (opinion of Roth, J.).
Merck sought review in this Court, pointing to dis
agreements among the Courts of Appeals. Compare Theo
harous v. Fong, 256 F.3d 1219, 1228 (CA11 2001) (limita
tions period begins to run when information puts plaintiffs
on “inquiry notice” of the need for investigation), with
Shah v. Meeker, 435 F.3d 244, 249 (CA2 2006) (same; but
if plaintiff does investigate, period runs “from the date
such inquiry should have revealed the fraud” (internal
quotation marks omitted)), and New England Health Care
Employees Pension Fund v. Ernst & Young, LLP, 336 F.3d
495, 501 (CA6 2003) (limitations period always begins to
8 MERCK & CO. v. REYNOLDS
Opinion of the Court
run only when a reasonably diligent plaintiff, after being
put on “inquiry notice,” should have discovered facts con
stituting violation (internal quotation marks omitted)).
We granted Merck’s petition.
II
Before turning to Merck’s arguments, we consider a
more basic matter. The parties and the Solicitor General
agree that §1658(b)(1)’s word “discovery” refers not only to
a plaintiff’s actual discovery of certain facts, but also to
the facts that a reasonably diligent plaintiff would have
discovered. We agree. But because the statute’s language
does not make this interpretation obvious, and because we
cannot answer the question presented without considering
whether the parties are right about this matter, we set
forth the reasons for our agreement in some detail.
We recognize that one might read the statutory words
“after the discovery of the facts constituting the violation”
as referring to the time a plaintiff actually discovered the
relevant facts. But in the statute of limitations context,
the word “discovery” is often used as a term of art in con
nection with the “discovery rule,” a doctrine that delays
accrual of a cause of action until the plaintiff has “discov
ered” it. The rule arose in fraud cases as an exception to
the general limitations rule that a cause of action accrues
once a plaintiff has a “complete and present cause of ac
tion,” Bay Area Laundry and Dry Cleaning Pension Trust
Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 201 (1997)
(citing Clark v. Iowa City, 20 Wall. 583, 589 (1875); inter
nal quotation marks omitted). This Court long ago recog
nized that something different was needed in the case of
fraud, where a defendant’s deceptive conduct may prevent
a plaintiff from even knowing that he or she has been
defrauded. Otherwise, “the law which was designed to
prevent fraud” could become “the means by which it is
Cite as: 559 U. S. ____ (2010) 9
Opinion of the Court
made successful and secure.” Bailey v. Glover, 21 Wall.
342, 349 (1875). Accordingly, “where a plaintiff has been
injured by fraud and remains in ignorance of it without
any fault or want of diligence or care on his part, the bar
of the statute does not begin to run until the fraud is
discovered.” Holmberg v. Armbrecht, 327 U.S. 392, 397
(1946) (internal quotation marks omitted; emphasis
added). And for more than a century, courts have under
stood that “[f]raud is deemed to be discovered . . . when, in
the exercise of reasonable diligence, it could have been
discovered.” 2 H. Wood, Limitation of Actions §276b(11),
p. 1402 (4th ed. 1916); see id., at 1401–1403, and nn. 74–
84 (collecting cases and statutes); see, e.g., Holmberg,
supra, at 397; Kirby v. Lake Shore & Michigan Southern
R. Co., 120 U.S. 130, 138 (1887) (The rule “regard[s] the
cause of action as having accrued at the time the fraud
was or should have been discovered”).
More recently, both state and federal courts have ap
plied forms of the “discovery rule” to claims other than
fraud. See 2 C. Corman, Limitation of Actions §§11.1.2.1,
11.1.2.3, pp. 136–142, and nn. 6–13, 18–23 (1991 and 1993
Supp.) (hereinafter Corman) (collecting cases); see, e.g.,
United States v. Kubrick, 444 U.S. 111 (1979). Legisla
tures have codified the discovery rule in various contexts.
2 Corman §11.2, at 170–171, and nn. 1–9 (collecting stat
utes); see, e.g., 28 U.S. C. §2409a(g) (actions to quiet title
against the United States). In doing so, legislators have
written the word “discovery” directly into the statute. And
when they have done so, state and federal courts have
typically interpreted the word to refer not only to actual
discovery, but also to the hypothetical discovery of facts a
reasonably diligent plaintiff would know. See, e.g., Pea
cock v. Barnes, 142 N. C. 215, 217–220, 55 S.E. 99, 100
(1906); Davis v. Hibernia Sav. & Loan Soc., 21 Cal. App.
444, 448, 132 P. 462, 464 (1913); Roether v. National
Union Fire Ins. Co., 51 N. D. 634, 640–642, 200 N.W. 818,
10 MERCK & CO. v. REYNOLDS
Opinion of the Court
821 (1924); Goldenberg v. Bache & Co., 270 F.2d 675, 681
(CA5 1959); Mobley v. Hall, 202 Mont. 227, 232, 657 P.2d
604, 606 (1983); Tregenza v. Great American Communica
tions Co., 12 F.3d 717, 721–722 (CA7 1993); J. Geils Band
Employee Benefit Plan v. Smith Barney Shearson, Inc., 76
F.3d 1245, 1254 (CA1 1996).
Thus, treatise writers now describe “the discovery rule”
as allowing a claim “to accrue when the litigant first
knows or with due diligence should know facts that will
form the basis for an action.” 2 Corman §11.1.1, at 134
(emphasis added); see also ibid., n. 1 (collecting cases); 37
Am. Jur. 2d, Fraud and Deceit §347, p. 354 (2001 and
Supp. 2009) (noting that the various formulations of “dis
covery” all provide that “in addition to actual knowledge of
the fraud, once a reasonably diligent party is in a position
that they should have sufficient knowledge or information
to have actually discovered the fraud, they are charged
with discovery”); id., at 354–355, and nn. 2–11 (collecting
cases).
Like the parties, we believe that Congress intended
courts to interpret the word “discovery” in §1658(b)(1)
similarly. Before Congress enacted that statute, this
Court, having found in the federal securities laws the
existence of an implied private §10(b) action, determined
its governing limitations period by looking to other limita
tions periods in the federal securities laws. Lampf, Pleva,
Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350
(1991). Noting the existence of various formulations
“differ[ing] slightly in terminology,” the Court chose the
language in 15 U.S. C. §78i(e), the statutory provision
that governs securities price manipulation claims. 501
U.S., at 364, n. 9. And in doing so, the Court said that
private §10(b) actions “must be commenced within one
year after the discovery of the facts constituting the viola
tion and within three years after such violation.” Id., at
364 (emphasis added). (The Court listed among the vari
Cite as: 559 U. S. ____ (2010) 11
Opinion of the Court
ous formulations the one in 15 U.S. C. §77m, on which the
concurrence relies. See post, at 2–4 (SCALIA, J., concurring
in part and concurring in judgment); Lampf, supra, at 360,
and n. 7 (quoting §77m).)
Subsequently, every Court of Appeals to decide the
matter held that “discovery of the facts constituting the
violation” occurs not only once a plaintiff actually discov
ers the facts, but also when a hypothetical reasonably
diligent plaintiff would have discovered them. See, e.g.,
Law v. Medco Research, Inc., 113 F.3d 781, 785–786 (CA7
1997); Dodds v. Cigna Securities, Inc., 12 F.3d 346, 350,
353 (CA2 1993); see In re NAHC, Inc. Securities Litigation,
306 F.3d 1314, 1325, n. 4 (CA3 2002) (collecting cases).
Some of those courts noted that other limitations provi
sions in the federal securities laws explicitly provide that
the period begins to run “ ‘after the discovery of the untrue
statement . . . or after such discovery should have been
made by [the] exercise of reasonable diligence,’ ” whereas
the formulation adopted by the Court in Lampf from 15
U.S. C. §78i(e) does not. Tregenza, supra, at 721 (quoting
§77m; emphasis added in Tregenza); see Lampf, supra, at
364, n. 9. But, courts reasoned, because the term “discov
ery” in respect to statutes of limitations for fraud has long
been understood to include discoveries a reasonably dili
gent plaintiff would make, the omission of an explicit
provision to that effect did not matter. Tregenza, supra, at
721; accord, New England Health Care, 336 F.3d, at 499–
500.
In 2002, when Congress enacted the present limitations
statute, it repeated Lampf’s critical language. The statute
says that an action based on fraud “may be brought not
later than the earlier of . . . 2 years after the discovery of
the facts constituting the violation” (or “5 years after such
violation”). §804 of the Sarbanes-Oxley Act, 116 Stat. 801,
codified at 28 U.S. C. §1658(b) (emphasis added). (This
statutory provision does not make the linguistic distinc
12 MERCK & CO. v. REYNOLDS
Opinion of the Court
tion that the concurrence finds in a different statute,
§77m, and upon which its argument rests. Cf. 29 U.S. C.
§1113(2) (statute in which Congress provided that an
action be brought “three years after the earliest date on
which the plaintiff had actual knowledge of the breach or
violation” (emphasis added)).) Not surprisingly, the
Courts of Appeals unanimously have continued to inter
pret the word “discovery” in this statute as including not
only facts a particular plaintiff knows, but also the facts
any reasonably diligent plaintiff would know. See, e.g.,
Staehr v. Hartford Financial Servs. Group, Inc., 547 F.3d
406, 411 (CA2 2008); Sudo Properties, Inc. v. Terrebonne
Parish Consolidated Govt., 503 F.3d 371, 376 (CA5 2007).
We normally assume that, when Congress enacts stat
utes, it is aware of relevant judicial precedent. See, e.g.,
Edelman v. Lynchburg College, 535 U.S. 106, 116–117,
and n. 13 (2002); Commissioner v. Keystone Consol. Indus
tries, Inc., 508 U.S. 152, 159 (1993). Given the history
and precedent surrounding the use of the word “discovery”
in the limitations context generally as well as in this
provision in particular, the reasons for making this as
sumption are particularly strong here. We consequently
hold that “discovery” as used in this statute encompasses
not only those facts the plaintiff actually knew, but also
those facts a reasonably diligent plaintiff would have
known. And we evaluate Merck’s claims accordingly.
III
We turn now to Merck’s arguments in favor of holding
that petitioners’ claims accrued before November 6, 2001.
First, Merck argues that the statute does not require
“discovery” of scienter-related “facts.” See Brief for Peti
tioners 19–28. We cannot agree, however, that facts about
scienter are unnecessary.
The statute says that the limitations period does not
begin to run until “discovery of the facts constituting the
Cite as: 559 U. S. ____ (2010) 13
Opinion of the Court
violation.” 28 U.S. C. §1658(b)(1) (emphasis added).
Scienter is assuredly a “fact.” In a §10(b) action, scienter
refers to “a mental state embracing intent to deceive,
manipulate, or defraud.” Ernst & Ernst, 425 U.S., at 194,
n. 12. And the “ ‘state of a man’s mind is as much a fact as
the state of his digestion.’ ” Postal Service Bd. of Gover
nors v. Aikens, 460 U.S. 711, 716 (1983) (quoting Edging
ton v. Fitzmaurice, [1885] 29 Ch. Div. 459, 483).
And this “fact” of scienter “constitut[es]” an important
and necessary element of a §10(b) “violation.” A plaintiff
cannot recover without proving that a defendant made a
material misstatement with an intent to deceive—not
merely innocently or negligently. See Tellabs, Inc. v.
Makor Issues & Rights, Ltd., 551 U.S. 308, 319 (2007);
Ernst & Ernst, supra. Indeed, Congress has enacted
special heightened pleading requirements for the scienter
element of §10(b) fraud cases. See 15 U.S. C. §78u–4(b)(2)
(requiring plaintiffs to “state with particularity facts
giving rise to a strong inference that the defendant acted
with the required state of mind” (emphasis added)). As a
result, unless a §10(b) plaintiff can set forth facts in the
complaint showing that it is “at least as likely as” not that the
defendant acted with the relevant knowledge or intent, the
claim will fail. Tellabs, supra, at 328 (emphasis deleted). It
would therefore frustrate the very purpose of the discovery
rule in this provision—which, after all, specifically applies
only in cases “involv[ing] a claim of fraud, deceit, manipu
lation, or contrivance,” §1658(b)—if the limitations period
began to run regardless of whether a plaintiff had discov
ered any facts suggesting scienter. So long as a defendant
concealed for two years that he made a misstatement with
an intent to deceive, the limitations period would expire
before the plaintiff had actually “discover[ed]” the fraud.
We consequently hold that facts showing scienter are
among those that “constitut[e] the violation.” In so hold
ing, we say nothing about other facts necessary to support
14 MERCK & CO. v. REYNOLDS
Opinion of the Court
a private §10(b) action. Cf. Brief for United States as
Amicus Curiae 12, n. 1 (suggesting that facts concerning a
plaintiff’s reliance, loss, and loss causation are not among
those that constitute “the violation” and therefore need not
be “discover[ed]” for a claim to accrue).
Second, Merck argues that, even if “discovery” requires
facts related to scienter, facts that tend to show a materi
ally false or misleading statement (or material omission)
are ordinarily sufficient to show scienter as well. See
Brief for Petitioners 22, 28–29. But we do not see how
that is so. We recognize that certain statements are such
that, to show them false is normally to show scienter as
well. It is unlikely, for example, that someone would
falsely say “I am not married” without being aware of the
fact that his statement is false. Where §10(b) is at issue,
however, the relation of factual falsity and state of mind is
more context specific. An incorrect prediction about a
firm’s future earnings, by itself, does not automatically tell
us whether the speaker deliberately lied or just made an
innocent (and therefore nonactionable) error. Hence, the
statute may require “discovery” of scienter-related facts
beyond the facts that show a statement (or omission) to be
materially false or misleading. Merck fears that this
requirement will give life to stale claims or subject defen
dants to liability for acts taken long ago. But Congress’
inclusion in the statute of an unqualified bar on actions
instituted “5 years after such violation,” §1658(b)(2), giv
ing defendants total repose after five years, should dimin
ish that fear. Cf. Lampf, 501 U.S., at 363 (holding compa
rable bar not subject to equitable tolling).
Third, Merck says that the limitations period began to
run prior to November 2001 because by that point the
plaintiffs were on “inquiry notice.” Merck uses the term
“inquiry notice” to refer to the point “at which a plaintiff
possesses a quantum of information sufficiently suggestive
of wrongdoing that he should conduct a further inquiry.”
Cite as: 559 U. S. ____ (2010) 15
Opinion of the Court
Brief for Petitioners 20. And some, but not all, Courts of
Appeals have used the term in roughly similar ways. See,
e.g., Franze v. Equitable Assurance, 296 F.3d 1250, 1254
(CA11 2002) (“[I]nquiry notice [is] “ ‘the term used for
knowledge of facts that would lead a reasonable person to
begin investigating the possibility that his legal rights had
been infringed’ ”). Cf. Dodds, 12 F.3d, at 350 (“duty of
inquiry” arises once “circumstances would suggest to an
investor of ordinary intelligence the probability that she
had been defrauded”); Fujisawa Pharmaceutical Co. v.
Kapoor, 115 F.3d 1332, 1335–1336 (CA7 1997) (“The facts
constituting [inquiry] notice must be sufficien[t] . . . to
incite the victim to investigate” and “to enable him to tie
up any loose ends and complete the investigation in time
to file a timely suit”); Great Rivers Cooperative of South
eastern Iowa v. Farmland Industries, Inc., 120 F.3d 893,
896 (CA8 1997) (“Inquiry notice exists when the victim is
aware of facts that would lead a reasonable person to
investigate and consequently acquire actual knowledge of
the defendant’s misrepresentations” (emphasis added)).
If the term “inquiry notice” refers to the point where the
facts would lead a reasonably diligent plaintiff to investi
gate further, that point is not necessarily the point at which
the plaintiff would already have discovered facts showing
scienter or other “facts constituting the violation.” But the
statute says that the plaintiff’s claim accrues only after the
“discovery” of those latter facts. Nothing in the text sug
gests that the limitations period can sometimes begin before
“discovery” can take place. Merck points out that, as we
have discussed, see supra, at 8–9, the court-created “discov
ery rule” exception to ordinary statutes of limitations is not
generally available to plaintiffs who fail to pursue their
claims with reasonable diligence. But we are dealing here
with a statute, not a court-created exception to a statute.
Because the statute contains no indication that the limita
tions period should occur at some earlier moment before
16 MERCK & CO. v. REYNOLDS
Opinion of the Court
“discovery,” when a plaintiff would have begun investigat
ing, we cannot accept Merck’s argument.
As a fallback, Merck argues that even if the limitations
period does generally begin at “discovery,” it should none
theless run from the point of “inquiry notice” in one par
ticular situation, namely, where the actual plaintiff fails to
undertake an investigation once placed on “inquiry no
tice.” In such circumstances, Merck contends, the actual
plaintiff is not diligent, and the law should not “effectively
excuse a plaintiff’s failure to conduct a further investiga
tion” by placing that nondiligent plaintiff and a reasonably
diligent plaintiff “in the same position.” Brief for Petition
ers 48.
We cannot accept this argument for essentially the same
reason we reject “inquiry notice” as the standard gener
ally: We cannot reconcile it with the statute, which simply
provides that “discovery” is the event that triggers the 2
year limitations period—for all plaintiffs. Cf. United
States v. Mack, 295 U.S. 480, 489 (1935) (“Laches within
the term of the statute of limitations is no defense at
law”). Furthermore, the statute does not place all plain
tiffs “in the same position” no matter whether they inves
tigate when investigation is warranted. The limitations
period puts plaintiffs who fail to investigate once on “in
quiry notice” at a disadvantage because it lapses two years
after a reasonably diligent plaintiff would have discovered
the necessary facts. A plaintiff who fails entirely to inves
tigate or delays investigating may well not have discov
ered those facts by that time or, at least, may not have
found sufficient facts by that time to be able to file a §10(b)
complaint that satisfies the applicable heightened plead
ing standards. Cf. Young v. Lepone, 305 F.3d 1, 9 (CA1
2002) (“[A] reasonably diligent investigation . . . may
consume as little as a few days or as much as a few years
to get to the bottom of the matter”).
Merck further contends that its proposed “inquiry no
Cite as: 559 U. S. ____ (2010) 17
Opinion of the Court
tice” standard is superior, because determining when a
hypothetical reasonably diligent plaintiff would have
“discover[ed]” the necessary facts is too complicated for
judges to undertake. But courts applying the traditional
discovery rule have long had to ask what a reasonably
diligent plaintiff would have known and done in myriad
circumstances. And courts in at least five Circuits already
ask this kind of question in securities fraud cases. See,
e.g., Rothman v. Gregor, 220 F.3d 81, 97 (CA2 2000); New
England Health Care, 336 F.3d, at 501; Young, supra, at
1, 9–10; Sterlin v. Biomune Systems, 154 F.3d 1191, 1201
(CA10 1998); Marks v. CDW Computer Centers, Inc., 122
F.3d 363, 367–368 (CA7 1997). Merck has not shown this
precedent to be unworkable. We consequently find that
the “discovery” of facts that put a plaintiff on “inquiry
notice” does not automatically begin the running of the
limitations period.
We conclude that the limitations period in §1658(b)(1)
begins to run once the plaintiff did discover or a reasona
bly diligent plaintiff would have “discover[ed] the facts
constituting the violation”—whichever comes first. In
determining the time at which “discovery” of those “facts”
occurred, terms such as “inquiry notice” and “storm warn
ings” may be useful to the extent that they identify a time
when the facts would have prompted a reasonably diligent
plaintiff to begin investigating. But the limitations period
does not begin to run until the plaintiff thereafter discov
ers or a reasonably diligent plaintiff would have discov
ered “the facts constituting the violation,” including sci
enter—irrespective of whether the actual plaintiff
undertook a reasonably diligent investigation.
IV
Finally, Merck argues that, even if all its other legal
arguments fail, the record still shows that, before Novem
18 MERCK & CO. v. REYNOLDS
Opinion of the Court
ber 6, 2001, the plaintiffs had discovered or should have
discovered “the facts constituting the violation.” In re
spect to scienter Merck primarily relies upon (1) the FDA’s
September 2001 warning letter, which said that Merck
had “ ‘minimized’ ” the VIGOR study’s “ ‘potentially serious
cardiovascular findings’ ” and (2) pleadings filed in prod
ucts-liability actions in September and October 2001
alleging that Merck had “ ‘omitted, suppressed, or con
cealed material facts concerning the dangers and risks
associated with Vioxx’ ” and “purposefully downplayed
and/or understated the serious nature of the risks associ
ated with Vioxx.” Brief for Petitioners 36–37 (quoting
App. 340, 893).
The FDA’s warning letter, however, shows little or
nothing about the here-relevant scienter, i.e., whether
Merck advanced the naproxen hypothesis with fraudulent
intent. See Part I–A(4), supra. The FDA itself described
the pro-Vioxx naproxen hypothesis as a “possible explana
tion” for the VIGOR results, faulting Merck only for failing
sufficiently to publicize the alternative less favorable to
Merck, that Vioxx might be harmful. App. 340.
The products-liability complaints’ statements about
Merck’s knowledge show little more. See Part I–A(3),
supra. Merck does not claim that these complaints con
tained any specific information suggesting the fraud al
leged here, i.e., that Merck knew the naproxen hypothesis
was false even as it promoted it. And, without providing
any reason to believe that the plaintiffs had special access
to information about Merck’s state of mind, the complaints
alleged only in general terms that Merck had concealed
information about Vioxx and “purposefully downplayed
and/or understated” the risks associated with Vioxx—the
same charge made in the FDA warning letter. App. 893.
In our view, neither these two circumstances nor any of
the other pre-November 2001 circumstances that we have
set forth in Part I–A, supra, whether viewed separately or
Cite as: 559 U. S. ____ (2010) 19
Opinion of the Court
together, reveal “facts” indicating scienter. Regardless of
which, if any, of the events following November 6, 2001,
constituted “discovery,” we need only conclude that prior
to November 6, 2001, the plaintiffs did not discover, and
Merck has not shown that a reasonably diligent plaintiff
would have discovered, “the facts constituting the viola
tion.” In light of our interpretation of the statute, our
holdings in respect to scienter, and our application of
those holdings to the circumstances of this case, we must,
and we do, reach that conclusion. Thus, the plaintiffs’ suit
is timely. We need not—and do not—pass upon the Court
of Appeals’ suggestion that the November 2003 Brigham
and Women’s study might have triggered the statute of
limitations. The judgment of the Court of Appeals is
Affirmed.
Cite as: 559 U. S. ____ (2010) 1
Opinion of STEVENS, J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 08–905
_________________
MERCK & CO., INC., ET AL., PETITIONERS v. RICHARD
REYNOLDS ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
[April 27, 2010]
JUSTICE STEVENS, concurring in part and concurring in
the judgment.
In my opinion the Court’s explanation of why the com
plaint was timely filed is convincing and correct. Ante, at
12–19. In this case there is no difference between the time
when the plaintiffs actually discovered the factual basis
for their claim and the time when reasonably diligent
plaintiffs should have discovered those facts. For that
reason, much of the discussion in Part II of the Court’s
opinion, see ante, at 8–12, is not necessary to support the
Court’s judgment. Until a case arises in which the differ
ence between an actual discovery rule and a constructive
discovery rule would affect the outcome, I would reserve
decision on the merits of JUSTICE SCALIA’s argument, post,
at 1–7 (opinion concurring in part and concurring in
judgment). With this reservation, I join the Court’s excel
lent opinion.
Cite as: 559 U. S. ____ (2010) 1
Opinion of SCALIA, J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 08–905
_________________
MERCK & CO., INC., ET AL., PETITIONERS v. RICHARD
REYNOLDS ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
[April 27, 2010]
JUSTICE SCALIA, with whom JUSTICE THOMAS joins,
concurring in part and concurring in the judgment. | This case concerns the timeliness of a complaint filed in a private securities fraud action. The complaint was timely if filed no more than two years after the plaintiffs “discover[ed] the facts constituting the violation.” 28 U.S. C. Construing this limitations statute for the first time, we hold that a cause of action accrues (1) when the plaintiff did in fact discover, or (2) when a rea sonably diligent plaintiff would have discovered, “the facts constituting the violation”—whichever comes first. We also hold that the “facts constituting the violation” include the fact of scienter, “a mental state embracing intent to deceive, manipulate, or defraud,” & v. Hochfelder, pplying this standard, we affirm the Court of ppeals’ determination that the complaint filed here was timely. I The action before us involves a claim by a group of inves tors (the plaintiffs, respondents here) that Merck & Co. and others (the petitioners here, hereinafter Merck) know ingly misrepresented the risks of heart attacks accompany 2 MERCK & CO. v. REYNOLDS Opinion of the Court ing the use of Merck’s pain-killing drug, Vioxx (leading to economic losses when the risks later became apparent). The plaintiffs brought an action for securities fraud under of the Securities Exchange ct of 134. See 48 Stat. 81, as amended, 15 U.S. C. SEC Rule 10b–5, 17 CFR (200); Dura Pharmaceuticals, Inc. v. Broudo, The applicable statute of limitations provides that a “private right of action” that, like the present action, “involves a claim of fraud, deceit, manipulation, or con trivance in contravention of a regulatory requirement concerning the securities laws may be brought not later than the earlier of— “(1) 2 years after the discovery of the facts constituting the violation; or “(2) 5 years after such violation.” 28 U.S. C. The complaint in this case was filed on November 6, 2003, and no one doubts that it was filed within five years of the alleged violation. Therefore, the critical date for timeliness purposes is November 6, —two years before this complaint was filed. Merck claims that before this date the plaintiffs had (or should have) discovered the “facts constituting the violation.” If so, by the time the plaintiffs filed their complaint, the 2-year statutory period in had run. The plaintiffs reply that they had not, and could not have, discovered by the critical date those “facts,” particularly not the facts related to scienter, and that their complaint was therefore timely. We first set out the relevant pre-November facts, as we have gleaned them from the briefs, the record, and the opinions below. 1. 10’s. In the mid-10’s Merck developed Vioxx. In 1 the Food and Drug dministration (FD) approved it for prescription use. Vioxx suppresses pain by inhibiting Cite as: 55 U. S. (0) 3 Opinion of the Court the body’s production of an enzyme called COX–2 (cyclooxy- genase-2). COX–2 is associated with pain and inflamma- tion. Unlike some other anti-inflammatory drugs in its class like aspirin, ibuprofen, and naproxen, Vioxx does not inhibit production of a second enzyme called COX–1 (cyclooxygenase-1). COX–1 plays a part in the functioning of the gastrointestinal tract and also in platelet aggregation (associated with blood clots). pp. 50–51. 2. March Merck announced the results of a study, called the “VIGOR” study. at 21–24. The study compared Vioxx with another painkiller, naproxen. The study showed that persons taking Vioxx suffered fewer gastrointestinal side effects (as Merck had hoped). But the study also revealed that approximately 4 out of every 1,000 participants who took Vioxx suffered heart attacks, compared to only 1 per 1,000 participants who took naproxen. ; see Bombardier et al., Com- parison of Upper Gastrointestinal Toxicity of Rofecoxib and Naproxen in Patients with Rheumatoid rthritis, 343 New England J. Medicine 1520, 1523, 1526–1527 Merck’s press release acknowledged VIGOR’s adverse cardiovascular data. But Merck said that these data were “consistent with naproxen’s ability to block platelet aggre- gation.” pp. 21. Merck noted that, since “Vioxx, like all COX–2 selective medicines, does not block platelet aggre- gation[, it] would not be expected to have similar effects.” nd Merck added that “safety data from all other completed and ongoing clinical trials showed no indica- tion of a difference in the incidence of thromboembolic events between Vioxx” and either a placebo or comparable drugs. This theory—that VIGOR’s troubling cardiovascular findings might be due to the absence of a benefit conferred by naproxen rather than due to a harm caused by Vioxx— later became known as the “naproxen hypothesis.” In advancing that hypothesis, Merck acknowledged that the 4 MERCK & CO. v. REYNOLDS Opinion of the Court naproxen benefit “had not been observed previously.” at 21. Journalists and stock market analysts reported all of the above—the positive gastrointestinal results, the troubling cardiovascular finding, the naproxen hypothesis, and the fact that the naproxen hypothesis was unproved. See at 355–31, 508–557. 3. February to ugust Public debate about the naproxen hypothesis continued. In February the FD’s rthritis dvisory Committee convened to consider Merck’s request that the Vioxx label be changed to reflect VIGOR’s positive gastrointestinal findings. The VIGOR cardiovascular findings were also discussed. at 32– 35, 558–577. In May a group of plaintiffs filed a products-liability lawsuit against Merck, claiming that “Merck’s own research” had demonstrated that “users of Vioxx were four times as likely to suffer heart attacks as compared to other less expensive, medications.” at 86. In ugust the Journal of the merican Medical ssociation wrote that the available data raised a “cau tionary flag” and strongly urged that “a trial specifically assessing cardiovascular risk” be done. at 331–332; Mukherjee, Nissen, & Topol, Risk of Cardiovascular Events ssociated with Selective Cox-2 Inhibitors, 286 JM 54 t about the same time, Bloomberg News quoted a Merck scientist who claimed that Merck had “additional data” that were “very, very reassuring,” and Merck issued a press release stating that it stood “behind the overall and cardiovascular safety profile of Vioxx.” pp. 434, 120 (emphasis deleted; internal quota tion marks omitted). 4. September and October The FD sent Merck a warning letter released to the public on September 21, It said that, in respect to cardiovascular risks, Merck’s Vioxx marketing was “false, lacking in fair bal ance, or otherwise misleading.” t the same time, the FD acknowledged that the naproxen hypothesis Cite as: 55 U. S. (0) 5 Opinion of the Court was a “possible explanation” of the VIGOR results. at 340. But it found that Merck’s “promotional campaign selectively present[ed]” that hypothesis without adequately acknowledging “another reasonable explanation,” namely, “that Vioxx may have pro-thrombotic [i.e., adverse cardio vascular] properties.” The FD ordered Merck to send healthcare providers a corrective letter. fter the FD letter was released, more products liability lawsuits were filed. See at 885–56. Merck’s share price fell by 6.6% over several days. See By October 1, the price rebounded. See On October the New York Times said that Merck had reexam ined its own data and “found no evidence that Vioxx in creased the risk of heart attacks.” pp. 504. It quoted the president of Merck Research Laboratories as positing “ ‘two possible interpretations’ ”: “ ‘Naproxen lowers the heart attack rate, or Vioxx raises it.’ ” Stock ana lysts, while reporting the warning letter, also noted that the FD had not denied that the naproxen hypothesis remained an unproven but possible explanation. See at 614, 626, 628. B We next set forth three important events that occurred after the critical date. 1. October 2003. The Wall Street Journal published the results of a Merck-funded Vioxx study conducted at Bos ton’s Brigham and Women’s Hospital. fter examining the medical records of more than 50,000 Medicare pa tients, researchers found that those given Vioxx for 30-to 0 days were 37% more likely to have suffered a heart attack than those given either a different painkiller or no painkiller at all. at 164–165. (That is to say, if pa tients given a different painkiller or given no painkiller at all suffered 10 heart attacks, then the same number of patients given Vioxx would suffer 13 or 14 heart attacks.) 6 MERCK & CO. v. REYNOLDS Opinion of the Court Merck defended Vioxx and pointed to the study’s limita tions. at 165–167. 2. September 30, 2004. Merck withdrew Vioxx from the market. It said that a new study had found “an increased risk of confirmed cardiovascular events beginning after 18 months of continuous therapy.” (internal quo tation marks omitted). Merck representative publicly described the results as “totally unexpected.” Merck’s shares fell by 27% the same day. 3. November 1, 2004. The Wall Street Journal published an article stating that “internal Merck e-mails and mar keting materials as well as interviews with outside scien tists show that the company fought forcefully for years to keep safety concerns from destroying the drug’s commer cial prospects.” at 18–10. The article said that an early e-mail from Merck’s head of research had said that the VIGOR “results showed that the cardiovascular events ‘are clearly there,’ ” that it was “ ‘a shame but a low incidence,’ ” and that it “ ‘is mechanism based as we wor ried it was.’ ” It also said that Merck had given its salespeople instructions to “ ‘DODGE’ ” questions about Vioxx’s cardiovascular effects. C The plaintiffs filed their complaint on November 6, 2003. s subsequently amended, the complaint alleged that Merck had defrauded investors by promoting the naproxen hypothesis, knowing the hypothesis was false. It said, for example, that Merck “knew, at least as early as 16, of the serious safety issues with Vioxx,” and that a “18 internal Merck clinical trial revealed that serious cardiovascular events occurred six times more frequently in patients given Vioxx than in patients given a different arthritis drug or placebo.” 58–5 (emphasis and capitalization deleted). Merck, believing that the plaintiffs knew or should have Cite as: 55 U. S. (0) 7 Opinion of the Court known the “facts constituting the violation” at least two years earlier, moved to dismiss the complaint, saying it was filed too late. The District Court granted the motion. The court held that the VIGOR study, the FD warning letter, and Merck’s response should have alerted the plaintiffs to a “possibility that Merck had knowingly misrepresented material facts” no later than October thus placing the plaintiffs on “inquiry notice” to look further. In re Merck & Co. Securities, Derivative & “ERIS” Litigation, Finding that the plaintiffs had failed to “show that they exercised reasonable due diligence but nevertheless were unable to discover their injuries,” the court took October as the date that the limitations period began to run and therefore found the complaint untimely. The Court of ppeals for the Third Circuit reversed. majority held that the pre-November events, while constituting “storm warnings,” did not suggest much by way of scienter, and consequently did not put the plaintiffs on “inquiry notice,” requiring them to investigate further. In re Merck & Co. Securities, Derivative & “ERIS” Litiga tion, dissenting judge consid ered the pre-November events sufficient to start the 2-year clock running. Merck sought review in this Court, pointing to dis agreements among the Courts of ppeals. Compare Theo (limita tions period begins to run when information puts plaintiffs on “inquiry notice” of the need for investigation), with (same; but if plaintiff does investigate, period runs “from the date such inquiry should have revealed the fraud” (internal quotation marks omitted)), and New England Health Employees Pension Fund v. & LLP, 336 F.3d 45, 501 (C6 2003) (limitations period always begins to 8 MERCK & CO. v. REYNOLDS Opinion of the Court run only when a reasonably diligent plaintiff, after being put on “inquiry notice,” should have discovered facts con stituting violation (internal quotation marks omitted)). We granted Merck’s petition. II Before turning to Merck’s arguments, we consider a more basic matter. The parties and the Solicitor General agree that ’s word “discovery” refers not only to a plaintiff’s actual discovery of certain facts, but also to the facts that a reasonably diligent plaintiff would have discovered. We agree. But because the statute’s language does not make this interpretation obvious, and because we cannot answer the question presented without considering whether the parties are right about this matter, we set forth the reasons for our agreement in some detail. We recognize that one might read the statutory words “after the discovery of the facts constituting the violation” as referring to the time a plaintiff actually discovered the relevant facts. But in the statute of limitations context, the word “discovery” is often used as a term of art in con nection with the “discovery rule,” a doctrine that delays accrual of a cause of action until the plaintiff has “discov ered” it. The rule arose in fraud cases as an exception to the general limitations rule that a cause of action accrues once a plaintiff has a “complete and present cause of ac tion,” Bay rea Laundry and Dry Cleaning Pension Trust ; inter nal quotation marks omitted). This Court long ago recog nized that something different was needed in the case of fraud, where a defendant’s deceptive conduct may prevent a plaintiff from even knowing that he or she has been defrauded. Otherwise, “the law which was designed to prevent fraud” could become “the means by which it is Cite as: 55 U. S. (0) Opinion of the Court made successful and secure.” Bailey v. Glover, 21 Wall. 342, 34 ccordingly, “where a plaintiff has been injured by fraud and remains in ignorance of it without any fault or want of diligence or care on his part, the bar of the statute does not begin to run until the fraud is discovered.” (146) (internal quotation marks omitted; emphasis added). nd for more than a century, courts have under stood that “[f]raud is deemed to be discovered when, in the exercise of reasonable diligence, it could have been discovered.” 2 H. Wood, Limitation of ctions p. 1402 (4th ed. 116); see at 1401–1403, and nn. 74– 84 (collecting cases and statutes); see, e.g., Holmberg, at ; (The rule “regard[s] the cause of action as having accrued at the time the fraud was or should have been discovered”). More recently, both state and federal courts have ap plied forms of the “discovery rule” to claims other than fraud. See 2 C. Corman, Limitation of ctions 11.1.2.3, pp. 136–142, and nn. 6–13, 18–23 (11 and Supp.) (hereinafter Corman) ; see, e.g., United Legisla tures have codified the discovery rule in various contexts. 2 Corman at 170–171, and nn. 1– (collecting stat utes); see, e.g., 28 U.S. C. (actions to quiet title against the United States). In doing so, legislators have written the word “discovery” directly into the statute. nd when they have done so, state and federal courts have typically interpreted the word to refer not only to actual discovery, but also to the hypothetical discovery of facts a reasonably diligent plaintiff would know. See, e.g., Pea 217–220, (106); ; 640–642, 10 MERCK & CO. v. REYNOLDS Opinion of the Court 821 (124); (C5 15); 657 P.2d 604, 606 ; ; J. Geils Band Employee Benefit Plan v. Smith Barney Shearson, Inc., 76 F.3d 1245, (C1 16). Thus, treatise writers now describe “the discovery rule” as allowing a claim “to accrue when the litigant first knows or with due diligence should know facts that will form the basis for an action.” 2 Corman at 134 ; see also ib n. 1 ; 37 m. Jur. 2d, Fraud and Deceit p. 354 ( and Supp. 200) (noting that the various formulations of “dis covery” all provide that “in addition to actual knowledge of the fraud, once a reasonably diligent party is in a position that they should have sufficient knowledge or information to have actually discovered the fraud, they are charged with discovery”); at 354–355, and nn. 2–11 (collecting cases). Like the parties, we believe that Congress intended courts to interpret the word “discovery” in similarly. Before Congress enacted that statute, this Court, having found in the federal securities laws the existence of an implied private action, determined its governing limitations period by looking to other limita tions periods in the federal securities laws. Pleva, Lipkind, Prupis & (11). Noting the existence of various formulations “differ[ing] slightly in terminology,” the Court chose the language in 15 U.S. C. the statutory provision that governs securities price manipulation claims. 501 U.S., at 364, n. nd in doing so, the Court said that private actions “must be commenced within one year after the discovery of the facts constituting the viola tion and within three years after such violation.” at 364 (The Court listed among the vari Cite as: 55 U. S. (0) 11 Opinion of the Court ous formulations the one in 15 U.S. C. on which the concurrence relies. See post, at 2–4 (SCLI, J., concurring in part and concurring in judgment); and n. 7 Some of those courts noted that other limitations provi sions in the federal securities laws explicitly provide that the period begins to run “ ‘after the discovery of the untrue statement or after such discovery should have been made by [the] exercise of reasonable diligence,’ ” whereas the formulation adopted by the Court in from 15 U.S. C. does not. (quoting emphasis added in ); see at 364, n. But, courts reasoned, because the term “discov ery” in respect to statutes of limitations for fraud has long been understood to include discoveries a reasonably dili gent plaintiff would make, the omission of an explicit provision to that effect did not matter. at 721; accord, New England Health – 500. In when Congress enacted the present limitations statute, it repeated ’s critical language. The statute says that an action based on fraud “may be brought not later than the earlier of 2 years after the discovery of the facts constituting the violation” (or “5 years after such violation”). of the Sarbanes-Oxley ct, codified at 28 U.S. C. (This statutory provision does not make the linguistic distinc 12 MERCK & CO. v. REYNOLDS Opinion of the Court tion that the concurrence finds in a different statute, and upon which its argument rests. Cf. 2 U.S. C. (statute in which Congress provided that an action be brought “three years after the earliest date on which the plaintiff had actual knowledge of the breach or violation” ).) Not surprisingly, the Courts of ppeals unanimously have continued to inter pret the word “discovery” in this statute as including not only facts a particular plaintiff knows, but also the facts any reasonably diligent plaintiff would know. See, e.g., Staehr v. Hartford Financial Servs. Group, Inc., 547 F.3d 406, 411 ; Sudo Properties, We normally assume that, when Congress enacts stat utes, it is aware of relevant judicial precedent. See, e.g., 116–117, and n. 13 ; Given the history and precedent surrounding the use of the word “discovery” in the limitations context generally as well as in this provision in particular, the reasons for making this as sumption are particularly strong here. We consequently hold that “discovery” as used in this statute encompasses not only those facts the plaintiff actually knew, but also those facts a reasonably diligent plaintiff would have known. nd we evaluate Merck’s claims accordingly. III We turn now to Merck’s arguments in favor of holding that petitioners’ claims accrued before November 6, First, Merck argues that the statute does not require “discovery” of scienter-related “facts.” See Brief for Peti tioners 1–28. We cannot agree, however, that facts about scienter are unnecessary. The statute says that the limitations period does not begin to run until “discovery of the facts constituting the Cite as: 55 U. S. (0) 13 Opinion of the Court violation.” 28 U.S. C. Scienter is assuredly a “fact.” In a action, scienter refers to “a mental state embracing intent to deceive, manipulate, or defraud.” & n. 12. nd the “ ‘state of a man’s mind is as much a fact as the state of his digestion.’ ” Postal Service Bd. of Gover (quoting Edging ton v. Fitzmaurice, [1885] 2 Ch. Div. 45, 483). nd this “fact” of scienter “constitut[es]” an important and necessary element of a “violation.” plaintiff cannot recover without proving that a defendant made a material misstatement with an intent to deceive—not merely innocently or negligently. See Inc. v. Makor Issues & Rights, Ltd., ; & Indeed, Congress has enacted special heightened pleading requirements for the scienter element of fraud cases. See 15 U.S. C. (requiring plaintiffs to “state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind” ). s a result, unless a plaintiff can set forth facts in the complaint showing that it is “at least as likely as” not that the defendant acted with the relevant knowledge or intent, the claim will fail. It would therefore frustrate the very purpose of the discovery rule in this provision—which, after all, specifically applies only in cases “involv[ing] a claim of fraud, deceit, manipu lation, or contrivance,” —if the limitations period began to run regardless of whether a plaintiff had discov ered any facts suggesting scienter. So long as a defendant concealed for two years that he made a misstatement with an intent to deceive, the limitations period would expire before the plaintiff had actually “discover[ed]” the fraud. We consequently hold that facts showing scienter are among those that “constitut[e] the violation.” In so hold ing, we say nothing about other facts necessary to support 14 MERCK & CO. v. REYNOLDS Opinion of the Court a private action. Cf. Brief for United States as micus Curiae 12, n. 1 (suggesting that facts concerning a plaintiff’s reliance, loss, and loss causation are not among those that constitute “the violation” and therefore need not be “discover[ed]” for a claim to accrue). Second, Merck argues that, even if “discovery” requires facts related to scienter, facts that tend to show a materi ally false or misleading statement (or material omission) are ordinarily sufficient to show scienter as well. See Brief for Petitioners 22, 28–2. But we do not see how that is so. We recognize that certain statements are such that, to show them false is normally to show scienter as well. It is unlikely, for example, that someone would falsely say “I am not married” without being aware of the fact that his statement is false. Where is at issue, however, the relation of factual falsity and state of mind is more context specific. n incorrect prediction about a firm’s future earnings, by itself, does not automatically tell us whether the speaker deliberately lied or just made an innocent (and therefore nonactionable) error. Hence, the statute may require “discovery” of scienter-related facts beyond the facts that show a statement (or omission) to be materially false or misleading. Merck fears that this requirement will give life to stale claims or subject defen dants to liability for acts taken long ago. But Congress’ inclusion in the statute of an unqualified bar on actions instituted “5 years after such violation,” (2), giv ing defendants total repose after five years, should dimin ish that fear. Cf. (holding compa rable bar not subject to equitable tolling). Third, Merck says that the limitations period began to run prior to November because by that point the plaintiffs were on “inquiry notice.” Merck uses the term “inquiry notice” to refer to the point “at which a plaintiff possesses a quantum of information sufficiently suggestive of wrongdoing that he should conduct a further inquiry.” Cite as: 55 U. S. (0) 15 Opinion of the Court Brief for Petitioners 20. nd some, but not all, Courts of ppeals have used the term in roughly similar ways. See, e.g., (“[I]nquiry notice [is] “ ‘the term used for knowledge of facts that would lead a reasonable person to begin investigating the possibility that his legal rights had been infringed’ ”). Cf. 12 F.3d, at (“duty of inquiry” arises once “circumstances would suggest to an investor of ordinary intelligence the probability that she had been defrauded”); Fujisawa Pharmaceutical Co. v. Kapoor, (“The facts constituting [inquiry] notice must be sufficien[t] to incite the victim to investigate” and “to enable him to tie up any loose ends and complete the investigation in time to file a timely suit”); Great Rivers Cooperative of South eastern 86 (“Inquiry notice exists when the victim is aware of facts that would lead a reasonable person to investigate and consequently acquire actual knowledge of the defendant’s misrepresentations” ). If the term “inquiry notice” refers to the point where the facts would lead a reasonably diligent plaintiff to investi gate further, that point is not necessarily the point at which the plaintiff would already have discovered facts showing scienter or other “facts constituting the violation.” But the statute says that the plaintiff’s claim accrues only after the “discovery” of those latter facts. Nothing in the text sug gests that the limitations period can sometimes begin before “discovery” can take place. Merck points out that, as we have discussed, see at 8–, the court-created “discov ery rule” exception to ordinary statutes of limitations is not generally available to plaintiffs who fail to pursue their claims with reasonable diligence. But we are dealing here with a statute, not a court-created exception to a statute. Because the statute contains no indication that the limita tions period should occur at some earlier moment before 16 MERCK & CO. v. REYNOLDS Opinion of the Court “discovery,” when a plaintiff would have begun investigat ing, we cannot accept Merck’s argument. s a fallback, Merck argues that even if the limitations period does generally begin at “discovery,” it should none theless run from the point of “inquiry notice” in one par ticular situation, namely, where the actual plaintiff fails to undertake an investigation once placed on “inquiry no tice.” In such circumstances, Merck contends, the actual plaintiff is not diligent, and the law should not “effectively excuse a plaintiff’s failure to conduct a further investiga tion” by placing that nondiligent plaintiff and a reasonably diligent plaintiff “in the same position.” Brief for Petition ers 48. We cannot accept this argument for essentially the same reason we reject “inquiry notice” as the standard gener ally: We cannot reconcile it with the statute, which simply provides that “discovery” is the event that triggers the 2 year limitations period—for all plaintiffs. Cf. United (“Laches within the term of the statute of limitations is no defense at law”). Furthermore, the statute does not place all plain tiffs “in the same position” no matter whether they inves tigate when investigation is warranted. The limitations period puts plaintiffs who fail to investigate once on “in quiry notice” at a disadvantage because it lapses two years after a reasonably diligent plaintiff would have discovered the necessary facts. plaintiff who fails entirely to inves tigate or delays investigating may well not have discov ered those facts by that time or, at least, may not have found sufficient facts by that time to be able to file a complaint that satisfies the applicable heightened plead ing standards. Cf. (“[] reasonably diligent investigation may consume as little as a few days or as much as a few years to get to the bottom of the matter”). Merck further contends that its proposed “inquiry no Cite as: 55 U. S. (0) 17 Opinion of the Court tice” standard is superior, because determining when a hypothetical reasonably diligent plaintiff would have “discover[ed]” the necessary facts is too complicated for judges to undertake. But courts applying the traditional discovery rule have long had to ask what a reasonably diligent plaintiff would have known and done in myriad circumstances. nd courts in at least five Circuits already ask this kind of question in securities fraud cases. See, e.g., 7 ; New England Health ; at 1, –10; 154 F.3d 111, 1 (C10 18); Marks v. CDW Computer Centers, Inc., 122 F.3d 363, 367–368 Merck has not shown this precedent to be unworkable. We consequently find that the “discovery” of facts that put a plaintiff on “inquiry notice” does not automatically begin the running of the limitations period. We conclude that the limitations period in begins to run once the plaintiff did discover or a reasona bly diligent plaintiff would have “discover[ed] the facts constituting the violation”—whichever comes first. In determining the time at which “discovery” of those “facts” occurred, terms such as “inquiry notice” and “storm warn ings” may be useful to the extent that they identify a time when the facts would have prompted a reasonably diligent plaintiff to begin investigating. But the limitations period does not begin to run until the plaintiff thereafter discov ers or a reasonably diligent plaintiff would have discov ered “the facts constituting the violation,” including sci enter—irrespective of whether the actual plaintiff undertook a reasonably diligent investigation. IV Finally, Merck argues that, even if all its other legal arguments fail, the record still shows that, before Novem 18 MERCK & CO. v. REYNOLDS Opinion of the Court ber 6, the plaintiffs had discovered or should have discovered “the facts constituting the violation.” In re spect to scienter Merck primarily relies upon (1) the FD’s September warning letter, which said that Merck had “ ‘minimized’ ” the VIGOR study’s “ ‘potentially serious cardiovascular findings’ ” and (2) pleadings filed in prod ucts-liability actions in September and October alleging that Merck had “ ‘omitted, suppressed, or con cealed material facts concerning the dangers and risks associated with Vioxx’ ” and “purposefully downplayed and/or understated the serious nature of the risks associ ated with Vioxx.” Brief for Petitioners 36–37 (quoting pp. 340, 83). The FD’s warning letter, however, shows little or nothing about the here-relevant scienter, i.e., whether Merck advanced the naproxen hypothesis with fraudulent intent. See Part I–(4), The FD itself described the pro-Vioxx naproxen hypothesis as a “possible explana tion” for the VIGOR results, faulting Merck only for failing sufficiently to publicize the alternative less favorable to Merck, that Vioxx might be harmful. pp. 340. The products-liability complaints’ statements about Merck’s knowledge show little more. See Part I–(3), Merck does not claim that these complaints con tained any specific information suggesting the fraud al leged here, i.e., that Merck knew the naproxen hypothesis was false even as it promoted it. nd, without providing any reason to believe that the plaintiffs had special access to information about Merck’s state of mind, the complaints alleged only in general terms that Merck had concealed information about Vioxx and “purposefully downplayed and/or understated” the risks associated with Vioxx—the same charge made in the FD warning letter. pp. 83. In our view, neither these two circumstances nor any of the other pre-November circumstances that we have set forth in Part I–, whether viewed separately or Cite as: 55 U. S. (0) 1 Opinion of the Court together, reveal “facts” indicating scienter. Regardless of which, if any, of the events following November 6, constituted “discovery,” we need only conclude that prior to November 6, the plaintiffs did not discover, and Merck has not shown that a reasonably diligent plaintiff would have discovered, “the facts constituting the viola tion.” In light of our interpretation of the statute, our holdings in respect to scienter, and our application of those holdings to the circumstances of this case, we must, and we do, reach that conclusion. Thus, the plaintiffs’ suit is timely. We need not—and do not—pass upon the Court of ppeals’ suggestion that the November 2003 Brigham and Women’s study might have triggered the statute of limitations. The judgment of the Court of ppeals is ffirmed. Cite as: 55 U. S. (0) 1 Opinion of STEVENS, J. SUPREME COURT OF THE UNITED STTES No. 08–05 MERCK & CO., INC., ET L., PETITIONERS v. RICHRD REYNOLDS ET L. ON WRIT OF CERTIORRI TO THE UNITED STTES COURT OF PPELS FOR THE THIRD CIRCUIT [pril 27, 0] JUSTICE STEVENS, concurring in part and concurring in the judgment. In my opinion the Court’s explanation of why the com plaint was timely filed is convincing and correct. nte, at 12–1. In this case there is no difference between the time when the plaintiffs actually discovered the factual basis for their claim and the time when reasonably diligent plaintiffs should have discovered those facts. For that reason, much of the discussion in Part II of the Court’s opinion, see ante, at 8–12, is not necessary to support the Court’s judgment. Until a case arises in which the differ ence between an actual discovery rule and a constructive discovery rule would affect the outcome, I would reserve decision on the merits of JUSTICE SCLI’s argument, post, at 1–7 (opinion concurring in part and concurring in judgment). With this reservation, I join the Court’s excel lent opinion. Cite as: 55 U. S. (0) 1 Opinion of SCLI, J. SUPREME COURT OF THE UNITED STTES No. 08–05 MERCK & CO., INC., ET L., PETITIONERS v. RICHRD REYNOLDS ET L. ON WRIT OF CERTIORRI TO THE UNITED STTES COURT OF PPELS FOR THE THIRD CIRCUIT [pril 27, 0] JUSTICE SCLI, with whom JUSTICE THOMS joins, concurring in part and concurring in the judgment. |
Justice Stewart | majority | false | Mincey v. Arizona | 1978-06-21T00:00:00 | null | https://www.courtlistener.com/opinion/109905/mincey-v-arizona/ | https://www.courtlistener.com/api/rest/v3/clusters/109905/ | 1,978 | 1977-123 | 2 | 9 | 0 | On the afternoon of October 28, 1974, undercover police officer Barry Headricks of the Metropolitan Area Narcotics Squad knocked on the door of an apartment in Tucson, Ariz., occupied by the petitioner, Rufus Mincey. Earlier in the day, Officer Headricks had allegedly arranged to purchase a quantity of heroin from Mincey and had left, ostensibly to obtain money. On his return he was accompanied by nine other plainclothes policemen and a deputy county attorney. The door was opened by John Hodgman, one of three acquaintances of Mincey who were in the living room of the apartment. Officer Headricks slipped inside and moved quickly into the bedroom. Hodgman attempted to slam the door in order to keep the other officers from entering, but was pushed back against the wall. As the police entered the apartment, a rapid volley of shots was heard from the bedroom. Officer Headricks emerged and collapsed on the floor. When other officers entered the bedroom they found Mincey lying on the floor, wounded and semiconscious. Officer Headricks died a few hours later in the hospital.
The petitioner was indicted for murder, assault,[1] and three *388 counts of narcotics offenses. He was tried at a single trial and convicted on all the charges. At his trial and on appeal, he contended that evidence used against him had been unlawfully seized from his apartment without a warrant and that statements used to impeach his credibility were inadmissible because they had not been made voluntarily. The Arizona Supreme Court reversed the murder and assault convictions on state-law grounds,[2] but affirmed the narcotics convictions. 115 Ariz. 472, 566 P.2d 273. It held that the warrantless search of a homicide scene is permissible under the Fourth and Fourteenth Amendments and that Mincey's statements were voluntary. We granted certiorari to consider these substantial constitutional question. 434 U.S. 902.
I
The first question presented is whether the search of Mincey's apartment was constitutionally permissible. After the shooting, the narcotics agents, thinking that other persons in the apartment might have been injured, looked about quickly for other victims. They found a young woman wounded in the bedroom closet and Mincey apparently unconscious in the bedroom, as well as Mincey's three acquaintances (one of whom had been wounded in the head) in the living room. Emergency assistance was requested, and some medical aid was administered to Officer Headricks. But the agents refrained from further investigation, pursuant to a Tucson Police Department directive that police officers should not investigate incidents in which they are involved. They neither searched further nor seized any evidence; they merely guarded the suspects and the premises.
Within 10 minutes, however, homicide detectives who had *389 heard a radio report of the shooting arrived and took charge of the investigation. They supervised the removal of Officer Headricks and the suspects, trying to make sure that the scene was disturbed as little as possible, and then proceeded to gather evidence. Their search lasted four days,[3] during which period the entire apartment was searched, photographed, and diagrammed. The officers opened drawers, closets, and cupboards, and inspected their contents; they emptied clothing pockets; they dug bullet fragments out of the walls and floors; they pulled up sections of the carpet and removed them for examination. Every item in the apartment was closely examined and inventoried, and 200 to 300 objects were seized. In short, Mincey's apartment was subjected to an exhaustive and intrusive search. No warrant was ever obtained.
The petitioner's pretrial motion to suppress the fruits of this search was denied after a hearing. Much of the evidence introduced against him at trial (including photographs and diagrams, bullets and shell casings, guns, narcotics, and narcotics paraphernalia) was the product of the four-day search of his apartment. On appeal, the Arizona Supreme Court reaffirmed previous decisions in which it had held that the warrantless search of the scene of a homicide is constitutionally permissible.[4] It stated its ruling as follows:
"We hold a reasonable, warrantless search of the scene of a homicideor of a serious personal injury with likelihood of death where there is reason to suspect foul play *390 does not violate the Fourth Amendment to the United States Constitution where the law enforcement officers were legally on the premises in the first instance. . . . For the search to be reasonable, the purpose must be limited to determining the circumstances of death and the scope must not exceed that purpose. The search must also begin within a reasonable period following the time when the officials first learn of the murder (or potential murder)." 115 Ariz., at 482, 566 P. 2d, at 283.
Since the investigating homicide detectives knew that Officer Headricks was seriously injured, began the search promptly upon their arrival at the apartment, and searched only for evidence either establishing the circumstances of death or "relevant to motive and intent or knowledge (narcotics, e. g.)." id., at 483, 566 P.2d, at 284, the court found that the warrantless search of the petitioner's apartment had not violated the Fourth and Fourteenth Amendments.
We cannot agree. The Fourth Amendment proscribes all unreasonable searches and seizures, and it is a cardinal principle that "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendmentsubject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357 (footnotes omitted); see also South Dakota v. Opperman, 428 U.S. 364, 381 (POWELL, J., concurring); Coolidge v. New Hampshire, 403 U.S. 443, 481; Vale v. Louisiana, 399 U.S. 30, 34; Terry v. Ohio, 392 U.S. 1, 20; Trupiano v. United States, 334 U.S. 699, 705. The Arizona Supreme Court did not hold that the search of the petitioner's apartment fell within any of the exceptions to the warrant requirement previously recognized by this Court, but rather that the search of a homicide scene should be recognized as an additional exception.
Several reasons are advanced by the State to meet its "burden *391. . . to show the existence of such an exceptional situation" as to justify creating a new exception to the warrant requirement. See Vale v. Louisiana, supra, at 34; United States v. Jeffers, 342 U.S. 48. 51. None of these reasons, however, persuades us of the validity of the generic exception delineated by the Arizona Supreme Court.
The first contention is that the search of the petitioner's apartment did not invade any constitutionally protected right of privacy. See Katz v. United States, supra. This argument appears to have two prongs. On the one hand, the State urges that by shooting Officer Headricks, Mincey forfeited any reasonable expectation of privacy in his apartment. We have recently rejected a similar waiver argument in Michigan v. Tyler, 436 U.S. 499, 505-506; it suffices here to say that this reasoning would impressibly convict the suspect even before the evidence against him was gathered.[5] On the other hand, the State contends that the police entry to arrest Mincey was so great an invasion of his privacy that the additional intrusion caused by the search was constitutionally irrelevant. But this claim is hardly tenable in light of the extensive nature of this search. It is one thing to say that one who is legally taken into police custody has a lessened right of privacy in his person. See United States v. Edwards, 415 U.S. 800, 808-809; United States v. Robinson, 414 U.S. 218. It is quite another to argue that he also has a lessened right of privacy in his entire house. Indeed this very argument was rejected when it was advanced to support the warrantless search of a dwelling where a search occurred as "incident" to the arrest of its occupant. Chimel v. California, 395 U.S. 752, 766 n. 12. *392 Thus, this search cannot be justified on the ground that no constitutionally protected right of privacy was invaded.
The State's second argument in support of its categorical exception to the warrant requirement is that a possible homicide presents an emergency situation demanding immediate action. We do not question the right of the police to respond to emergency situations. Numerous state[6] and federal[7] cases have recognized that the Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid. Similarly, when the police come upon the scene of a homicide they may make a prompt warrantless search of the area to see if there are other victims or if a killer is still on the premises. Cf. Michigan v. Tyler, supra, at 509-510. "The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency." Wayne v. *393 United States, 115 U. S. App. D. C. 234, 241, 318 F.2d 205, 212 (opinion of Burger, J.). And the police may seize any evidence that is in plain view during the course of their legitimate emergency activities. Michigan v. Tyler, supra, at 509-510; Coolidge v. New Hampshire, 403 U. S., at 465-466.
But a warrantless search must be "strictly circumscribed by the exigencies which justify its initiation," Terry v. Ohio, 392 U. S., at 25-26, and it simply cannot be contended that this search was justified by any emergency threatening life or limb. All the persons in Mincey's apartment had been located before the investigating homicide officers arrived there and began their search. And a four-day search that included opening dresser drawers and ripping up carpets can hardly be rationalized in terms of the legitimate concerns that justify an emergency search.
Third, the State points to the vital public interest in the prompt investigation of the extremely serious crime of murder. No one can doubt the importance of this goal. But the public interest in the investigation of other serious crimes is comparable. If the warrantless search of a homicide scene is reasonable, why not the warrantless search of the scene of a rape, a robbery, or a burglary? "No consideration relevant to the Fourth Amendment suggests any point of rational limitation" of such a doctrine. Chimel v. California, supra, at 766.
Moreover, the mere fact that law enforcement may be made more efficient can never by itself justify disregard of the Fourth Amendment. Cf. Coolidge v. New Hampshire, supra, at 481. The investigation of crime would always be simplified if warrants were unnecessary. But the Fourth Amendment reflects the view of those who wrote the Bill of Rights that the privacy of a person's home and property may not be totally sacrificed in the name of maximum simplicity in enforcement of the criminal law. See United States v. Chadwick, 433 U.S. 1. 6-11. For this reason, warrants are *394 generally required to search a person's home or his person unless "the exigencies of the situation" make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment. McDonald v. United States, 335 U.S. 451, 456; Johnson v. United States, 333 U.S. 10, 14-15. See, e. g., Chimel v. California, supra (search of arrested suspect and area within his control for weapons or evidence); Warden v. Hayden, 387 U.S. 294, 298-300 ("hot pursuit" of fleeing suspect); Schmerber v. California, 384 U.S. 757, 770-771 (imminent destruction of evidence); see also supra, at 392-393.
Except for the fact that the offense under investigation was a homicide, there were no exigent circumstances in this case, as, indeed, the Arizona Supreme Court recognized. 115 Ariz., at 482, 566 P.2d, at 283. There was no indication that evidence would be lost, destroyed, or removed during the time required to obtain a search warrant. Indeed, the police guard at the apartment minimized that possibility. And there is no suggestion that a search warrant could not easily and conveniently have been obtained. We decline to hold that the seriousness of the offense under investigation itself creates exigent circumstances of the kind that under the Fourth Amendment justify a warrantless search.
Finally, the State argues that the "murder scene exception" is constitutionally permissible because it is narrowly confined by the guidelines set forth in the decision of the Arizona Supreme Court, see supra, at 389-390.[8] In light of the extensive search that took place in this case it may be questioned what protection the guidelines afford a person in whose home a homicide or assault occurs. Indeed, these so-called guidelines *395 are hardly so rigidly confining as the State seems to assert. They confer unbridled discretion upon the individual officer to interpret such terms as "reasonable . . . search," "serious personal injury with likelihood of death where there is reason to suspect foul play," and "reasonable period." It is precisely this kind of judgmental assessment of the reasonableness and scope of a proposed search that the Fourth Amendment requires be made by a neutral and objective magistrate, not a police officer. See, e. g., United States v. United States District Court, 407 U.S. 297, 316; Coolidge v. New Hampshire, supra, at 449-453; Mancusi v. DeForte, 392 U.S. 364, 371; Wong Sun v. United States, 371 U.S. 471, 481-482.
It may well be that the circumstances described by the Arizona Supreme Court would usually be constitutionally sufficient to warrant a search of substantial scope. But the Fourth Amendment requires that this judgment in each case be made in the first instance by a neutral magistrate.
"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." Johnson v. United States, supra, at 13-14.
In sum, we hold that the "murder scene exception" created by the Arizona Supreme Court is inconsistent with the Fourth and Fourteenth Amendmentsthat the warrantless search of Mincey's apartment was not constitutionally permissible simply because a homicide had recently occurred there."[9]
*396 II
Since there will presumably be a new trial in this case,[10] it is appropriate to consider also the petitioner's contention that statements he made from a hospital bed were involuntary, and therefore could not constitutionally be used against him at his trial.
Mincey was brought to the hospital after the shooting and taken immediately to the emergency room where he was examined and treated. He had sustained a wound in his hip, resulting in damage to the sciatic nerve and partial paralysis of his right leg. Tubes were inserted into his throat to help him breathe, and through his nose into his stomach to keep him from vomiting; a catheter was inserted into his bladder. He received various drugs, and a device was attached to his arm so that he could be fed intravenously. He was then taken to the intensive care unit.
At about eight o'clock that evening, Detective Hust of the Tucson Police Department came to the intensive care unit to interrogate him. Mincey was unable to talk because of the tube in his mouth, and so he responded to Detective Hust's questions by writing answers on pieces of paper provided by the hospital.[11] Hust told Mincey he was under arrest for the murder of a police officer, gave him the warnings required by Miranda v. Arizona, 384 U.S. 436, and began to ask questions about the events that had taken place in Mincey's apartment a few hours earlier. Although Mincey asked repeatedly that the interrogation stop until he could get a lawyer, Hust continued to question him until almost midnight.
*397 After a pretrial hearing, see Jackson v. Denno, 378 U.S. 368, the trial court found that Mincey had responded to this interrogation voluntarily.[12] When Mincey took the witness stand at his trial his statements in response to Detective Hust's questions were used in an effort to impeach his testimony in several respects.[13] On appeal, the Arizona Supreme Court indicated its belief that because Detective Hust had failed to honor Mincey's request for a lawyer, the statements would have been inadmissible as part of the prosecution's case in chief. Miranda v. Arizona, supra. But, relying on Harris v. New York, 401 U.S. 222, and Oregon v. Hass, 420 U.S. 714, it held that since the trial court's finding of voluntariness was not "clear[ly] and manifest[ly]" erroneous the statements were properly used for purposes of impeachment. 115 Ariz., at 480, 566 P. 2d, at 281.
Statements made by a defendant in circumstances violating the strictures of Miranda v. Arizona, supra, are admissible for *398 impeachment if their "trustworthiness . . . satisfies legal standards." Harris v. New York, supra, at 224; Oregon v. Hass, supra, at 722. But any criminal trial use against a defendant of his involuntary statement is a denial of due process of law "even though there is ample evidence aside from the confession to support the conviction." Jackson v. Denno, supra, at 376; Haynes v. Washington, 373 U.S. 503, 518; Lynumn v. Illinois, 372 U.S. 528, 537; Stroble v. California, 343 U.S. 181, 190; see Chapman v. California, 386 U.S. 18, 23 and n. 8. If, therefore, Mincey's statements to Detective Hust were not "`the product of a rational intellect and a free will,'" Townsend v. Sain, 372 U.S. 293, 307, quoting Blackburn v. Alabama, 361 U.S. 199, 208, his conviction cannot stand. In making this critical determination, we are not bound by the Arizona Supreme Court's holding that the statements were voluntary. Instead, this Court is under a duty to make an independent evaluation of the record. Davis v. North Carolina, 384 U.S. 737, 741-742; Haynes v. Washington, supra, at 515-516.
It is hard to imagine a situation less conducive to the exercise of "a rational intellect and a free will" than Mincey's. He had been seriously wounded just a few hours earlier, and had arrived at the hospital "depressed almost to the point of coma," according to his attending physician. Although he had received some treatment, his condition at the time of Hust's interrogation was still sufficiently serious that he was in the intensive care unit.[14] He complained to Hust that the pain in his leg was "unbearable." He was evidently confused and unable to think clearly about either the events of that afternoon or the circumstances of his interrogation, since some *399 of his written answers were on their face not entirely coherent.[15] Finally, while Mincey was being questioned he was lying on his back on a hospital bed, encumbered by tubes, needles, and breathing apparatus. He was, in short, "at the complete mercy" of Detective Hust, unable to escape or resist the thrust of Hust's interrogation. Cf. Beecher v. Alabama, 389 U.S. 35, 38.
In this debilitated and helpless condition, Mincey clearly expressed his wish not to be interrogated. As soon as Hust's questions turned to the details of the afternoon's events, Mincey wrote: "This is all I can say without a lawyer." Hust nonetheless continued to question him, and a nurse who was present suggested it would be best if Mincey answered. Mincey gave unresponsive or uninformative answers to several more questions, and then said again that he did not want to talk without a lawyer. Hust ignored that request and another made immediately thereafter.[16] Indeed, throughout the interrogation *400 Mincey vainly asked Hust to desist. Moreover, he complained several times that he was confused or unable to think clearly, or that he could answer more accurately *401 the next day.[17] But despite Mincey's entreaties to be let alone, Hust ceased the interrogation only during intervals when Mincey lost consciousness or received medical treatment, and after each such interruption returned relentlessly to his task. The statements at issue were thus the result of virtually continuous questioning of a seriously and painfully wounded man on the edge of consciousness.
There were not present in this case some of the gross abuses that have led the Court in other cases to find confessions involuntary, such as beatings, see Brown v. Mississippi, 297 U.S. 278, or "truth serums," see Townsend v. Sain, 372 U.S. 293. But "the blood of the accused is not the only hallmark of an unconstitutional inquisition." Blackburn v. Alabama, 361 U. S., at 206. Determination of whether a statement is involuntary "requires more than a mere color-matching of cases." Reck v. Pate, 367 U.S. 433, 442. It requires careful evaluation of all the circumstances of the interrogation.[18]
It is apparent from the record in this case that Mincey's statements were not "the product of his free and rational choice." Greenwald v. Wisconsin, 390 U.S. 519, 521. To the contrary, the undisputed evidence makes clear that Mincey wanted not to answer Detective Hust. But Mincey was weakened by pain and shock, isolated from family, friends, and legal counsel, and barely conscious, and his will was simply *402 overborne. Due process of law requires that statements obtained as these were cannot be used in any way against a defendant at his trial.
III
For the foregoing reasons, the judgment of the Arizona Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
MR. JUSTICE MARSHALL, with whom MR. | On the afternoon of October 28, 1974, undercover police officer Barry Headricks of the Metropolitan Area Narcotics Squad knocked on the door of an apartment in Tucson, Ariz., occupied by the petitioner, Rufus Mincey. Earlier in the day, Officer Headricks had allegedly arranged to purchase a quantity of heroin from Mincey and had left, ostensibly to obtain money. On his return he was accompanied by nine other plainclothes policemen and a deputy county attorney. The door was opened by John Hodgman, one of three acquaintances of Mincey who were in the living room of the apartment. Officer Headricks slipped inside and moved quickly into the bedroom. Hodgman attempted to slam the door in order to keep the other officers from entering, but was pushed back against the wall. As the police entered the apartment, a rapid volley of shots was heard from the bedroom. Officer Headricks emerged and collapsed on the floor. When other officers entered the bedroom they found Mincey lying on the floor, wounded and semiconscious. Officer Headricks died a few hours later in the hospital. The petitioner was indicted for murder, assault,[1] and three *8 counts of narcotics offenses. He was tried at a single trial and convicted on all the charges. At his trial and on appeal, he contended that evidence used against him had been unlawfully seized from his apartment without a warrant and that statements used to impeach his credibility were inadmissible because they had not been made voluntarily. The Supreme Court reversed the murder and assault convictions on state-law grounds,[2] but affirmed the narcotics convictions. It held that the warrantless search of a homicide scene is permissible under the Fourth and Fourteenth Amendments and that Mincey's statements were voluntary. We granted certiorari to consider these substantial constitutional question. I The first question presented is whether the search of Mincey's apartment was constitutionally permissible. After the shooting, the narcotics agents, thinking that other persons in the apartment might have been injured, looked about quickly for other victims. They found a young woman wounded in the bedroom closet and Mincey apparently unconscious in the bedroom, as well as Mincey's three acquaintances (one of whom had been wounded in the head) in the living room. Emergency assistance was requested, and some medical aid was administered to Officer Headricks. But the agents refrained from further investigation, pursuant to a Tucson Police Department directive that police officers should not investigate incidents in which they are involved. They neither searched further nor seized any evidence; they merely guarded the suspects and the premises. Within 10 minutes, however, homicide detectives who had *9 heard a radio report of the shooting arrived and took charge of the investigation. They supervised the removal of Officer Headricks and the suspects, trying to make sure that the scene was disturbed as little as possible, and then proceeded to gather evidence. Their search lasted four days,[3] during which period the entire apartment was searched, photographed, and diagrammed. The officers opened drawers, closets, and cupboards, and inspected their contents; they emptied clothing pockets; they dug bullet fragments out of the walls and floors; they pulled up sections of the carpet and removed them for examination. Every item in the apartment was closely examined and inventoried, and 0 to 300 objects were seized. In short, Mincey's apartment was subjected to an exhaustive and intrusive search. No warrant was ever obtained. The petitioner's pretrial motion to suppress the fruits of this search was denied after a hearing. Much of the evidence introduced against him at trial (including photographs and diagrams, bullets and shell casings, guns, narcotics, and narcotics paraphernalia) was the product of the four-day search of his apartment. On appeal, the Supreme Court reaffirmed previous decisions in which it had held that the warrantless search of the scene of a homicide is constitutionally permissible.[4] It stated its ruling as follows: "We hold a reasonable, warrantless search of the scene of a homicideor of a serious personal injury with likelihood of death where there is reason to suspect foul play *390 does not violate the Fourth Amendment to the United Constitution where the law enforcement officers were legally on the premises in the first instance. For the search to be reasonable, the purpose must be limited to determining the circumstances of death and the scope must not exceed that purpose. The search must begin within a reasonable period following the time when the officials first learn of the murder (or potential murder)." 566 P. 2d, at 283. Since the investigating homicide detectives knew that Officer Headricks was seriously injured, began the search promptly upon their arrival at the apartment, and searched only for evidence either establishing the circumstances of death or "relevant to motive and intent or knowledge (narcotics, e. g.)." the court found that the warrantless search of the petitioner's apartment had not violated the Fourth and Fourteenth Amendments. We cannot agree. The Fourth Amendment proscribes all unreasonable searches and seizures, and it is a cardinal principle that "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendmentsubject only to a few specifically established and well-delineated exceptions." (footnotes omitted); see South (POWELL, J., concurring); ; ; ; 3 U.S. 699, The Supreme Court did not hold that the search of the petitioner's apartment fell within any of the exceptions to the warrant requirement previously recognized by this Court, but rather that the search of a homicide scene should be recognized as an additional exception. Several reasons are advanced by the State to meet its "burden *391. to show the existence of such an exceptional situation" as to justify creating a new exception to the warrant requirement. See at ; United 2 U.S. 48. 51. None of these reasons, however, persuades us of the validity of the generic exception delineated by the Supreme Court. The first contention is that the search of the petitioner's apartment did not invade any constitutionally protected right of privacy. See This argument appears to have two prongs. On the one hand, the State urges that by shooting Officer Headricks, Mincey forfeited any reasonable expectation of privacy in his apartment. We have recently rejected a similar waiver argument in ; it suffices here to say that this reasoning would impressibly convict the suspect even before the evidence against him was gathered.[5] On the other hand, the State contends that the police entry to arrest Mincey was so great an invasion of his privacy that the additional intrusion caused by the search was constitutionally irrelevant. But this claim is hardly tenable in light of the extensive nature of this search. It is one thing to say that one who is legally taken into police custody has a lessened right of privacy in his person. See United v. Edwards, ; United v. Robinson, It is quite another to argue that he has a lessened right of privacy in his entire house. Indeed this very argument was rejected when it was advanced to support the warrantless search of a dwelling where a search occurred as "incident" to the arrest of its occupant. 766 n. 12. *392 Thus, this search cannot be justified on the ground that no constitutionally protected right of privacy was invaded. The State's second argument in support of its categorical exception to the warrant requirement is that a possible homicide presents an emergency situation demanding immediate action. We do not question the right of the police to respond to emergency situations. Numerous state[6] and federal[7] cases have recognized that the Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid. Similarly, when the police come upon the scene of a homicide they may make a prompt warrantless search of the area to see if there are other victims or if a killer is still on the premises. Cf. "The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency." Wayne v. *393 United 115 U. S. App. D. C. 2, 241, 318 F.2d 5, (opinion of Burger, J.). And the police may seize any evidence that is in plain view during the course of their legitimate emergency activities. ; -466. But a warrantless search must be "strictly circumscribed by the exigencies which justify its initiation," -26, and it simply cannot be contended that this search was justified by any emergency threatening life or limb. All the persons in Mincey's apartment had been located before the investigating homicide officers arrived there and began their search. And a four-day search that included opening dresser drawers and ripping up carpets can hardly be rationalized in terms of the legitimate concerns that justify an emergency search. Third, the State points to the vital public interest in the prompt investigation of the extremely serious crime of murder. No one can doubt the importance of this goal. But the public interest in the investigation of other serious crimes is comparable. If the warrantless search of a homicide scene is reasonable, why not the warrantless search of the scene of a rape, a robbery, or a burglary? "No consideration relevant to the Fourth Amendment suggests any point of rational limitation" of such a doctrine. Moreover, the mere fact that law enforcement may be made more efficient can never by itself justify disregard of the Fourth Amendment. Cf. at The investigation of crime would always be simplified if warrants were unnecessary. But the Fourth Amendment reflects the view of those who wrote the Bill of Rights that the privacy of a person's home and property may not be totally sacrificed in the name of maximum simplicity in enforcement of the criminal law. See United v. Chadwick, 6-11. For this reason, warrants are *394 generally required to search a person's home or his person unless "the exigencies of the situation" make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment. McDonald v. United ; Johnson v. United See, e. g., ; ("hot pursuit" of fleeing suspect); Schmerber v. (imminent destruction of evidence); see Except for the fact that the offense under investigation was a homicide, there were no exigent circumstances in this case, as, indeed, the Supreme Court There was no indication that evidence would be lost, destroyed, or removed during the time required to obtain a search warrant. Indeed, the police guard at the apartment minimized that possibility. And there is no suggestion that a search warrant could not easily and conveniently have been obtained. We decline to hold that the seriousness of the offense under investigation itself creates exigent circumstances of the kind that under the Fourth Amendment justify a warrantless search. Finally, the State argues that the "murder scene exception" is constitutionally permissible because it is narrowly confined by the guidelines set forth in the decision of the Supreme Court, see[8] In light of the extensive search that took place in this case it may be questioned what protection the guidelines afford a person in whose home a homicide or assault occurs. Indeed, these so-called guidelines *395 are hardly so rigidly confining as the State seems to assert. They confer unbridled discretion upon the individual officer to interpret such terms as "reasonable search," "serious personal injury with likelihood of death where there is reason to suspect foul play," and "reasonable period." It is precisely this kind of judgmental assessment of the reasonableness and scope of a proposed search that the Fourth Amendment requires be made by a neutral and objective magistrate, not a police officer. See, e. g., United v. United District Court, ; ; ; Wong Sun v. United U.S. 471, -482. It may well be that the circumstances described by the Supreme Court would usually be constitutionally sufficient to warrant a search of substantial scope. But the Fourth Amendment requires that this judgment in each case be made in the first instance by a neutral magistrate. "The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." Johnson v. United In sum, we hold that the "murder scene exception" created by the Supreme Court is inconsistent with the Fourth and Fourteenth Amendmentsthat the warrantless search of Mincey's apartment was not constitutionally permissible simply because a homicide had recently occurred there."[9] *396 II Since there will presumably be a new trial in this case,[10] it is appropriate to consider the petitioner's contention that statements he made from a hospital bed were involuntary, and therefore could not constitutionally be used against him at his trial. Mincey was brought to the hospital after the shooting and taken immediately to the emergency room where he was examined and treated. He had sustained a wound in his hip, resulting in damage to the sciatic nerve and partial paralysis of his right leg. Tubes were inserted into his throat to help him breathe, and through his nose into his stomach to keep him from vomiting; a catheter was inserted into his bladder. He received various drugs, and a device was attached to his arm so that he could be fed intravenously. He was then taken to the intensive care unit. At about eight o'clock that evening, Detective Hust of the Tucson Police Department came to the intensive care unit to interrogate him. Mincey was unable to talk because of the tube in his mouth, and so he responded to Detective Hust's questions by writing answers on pieces of paper provided by the hospital.[11] Hust told Mincey he was under arrest for the murder of a police officer, gave him the warnings required by and began to ask questions about the events that had taken place in Mincey's apartment a few hours earlier. Although Mincey asked repeatedly that the interrogation stop until he could get a lawyer, Hust continued to question him until almost midnight. *397 After a pretrial hearing, see the trial court found that Mincey had responded to this interrogation voluntarily.[12] When Mincey took the witness stand at his trial his statements in response to Detective Hust's questions were used in an effort to impeach his testimony in several respects.[13] On appeal, the Supreme Court indicated its belief that because Detective Hust had failed to honor Mincey's request for a lawyer, the statements would have been inadmissible as part of the prosecution's case in chief. But, relying on and 4 U.S. 714, it held that since the trial court's finding of voluntariness was not "clear[ly] and manifest[ly]" erroneous the statements were properly used for purposes of 566 P. 2d, at 281. Statements made by a defendant in circumstances violating the strictures of are admissible for *398 impeachment if their "trustworthiness satisfies legal standards." ; But any criminal trial use against a defendant of his involuntary statement is a denial of due process of law "even though there is ample evidence aside from the confession to support the conviction." ; ; ; Stroble v. 3 U.S. 181, ; see Chapman v. 23 and n. 8. If, therefore, Mincey's statements to Detective Hust were not "`the product of a rational intellect and a free will,'" quoting 8, his conviction cannot stand. In making this critical determination, we are not bound by the Supreme Court's holding that the statements were voluntary. Instead, this Court is under a duty to make an independent evaluation of the record. ; It is hard to imagine a situation less conducive to the exercise of "a rational intellect and a free will" than Mincey's. He had been seriously wounded just a few hours earlier, and had arrived at the hospital "depressed almost to the point of coma," according to his attending physician. Although he had received some treatment, his condition at the time of Hust's interrogation was still sufficiently serious that he was in the intensive care unit.[14] He complained to Hust that the pain in his leg was "unbearable." He was evidently confused and unable to think clearly about either the events of that afternoon or the circumstances of his interrogation, since some *399 of his written answers were on their face not entirely coherent.[15] Finally, while Mincey was being questioned he was lying on his back on a hospital bed, encumbered by tubes, needles, and breathing apparatus. He was, in short, "at the complete mercy" of Detective Hust, unable to escape or resist the thrust of Hust's interrogation. Cf. In this debilitated and helpless condition, Mincey clearly expressed his wish not to be interrogated. As soon as Hust's questions turned to the details of the afternoon's events, Mincey wrote: "This is all I can say without a lawyer." Hust nonetheless continued to question him, and a nurse who was present suggested it would be best if Mincey answered. Mincey gave unresponsive or uninformative answers to several more questions, and then said again that he did not want to talk without a lawyer. Hust ignored that request and another made immediately thereafter.[16] Indeed, throughout the interrogation *400 Mincey vainly asked Hust to desist. Moreover, he complained several times that he was confused or unable to think clearly, or that he could answer more accurately *401 the next day.[17] But despite Mincey's entreaties to be let alone, Hust ceased the interrogation only during intervals when Mincey lost consciousness or received medical treatment, and after each such interruption returned relentlessly to his task. The statements at issue were thus the result of virtually continuous questioning of a seriously and painfully wounded man on the edge of consciousness. There were not present in this case some of the gross abuses that have led the Court in other cases to find confessions involuntary, such as beatings, see or "truth serums," see But "the blood of the accused is not the only hallmark of an unconstitutional inquisition." 361 U. S., at 6. Determination of whether a statement is involuntary "requires more than a mere color-matching of cases." It requires careful evaluation of all the circumstances of the interrogation.[18] It is apparent from the record in this case that Mincey's statements were not "the product of his free and rational choice." To the contrary, the undisputed evidence makes clear that Mincey wanted not to answer Detective Hust. But Mincey was weakened by pain and shock, isolated from family, friends, and legal counsel, and barely conscious, and his will was simply *402 overborne. Due process of law requires that statements obtained as these were cannot be used in any way against a defendant at his trial. III For the foregoing reasons, the judgment of the Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. MR. JUSTICE MARSHALL, with whom MR. |
Justice Douglas | concurring | false | Lehman v. Shaker Heights | 1974-06-25T00:00:00 | null | https://www.courtlistener.com/opinion/109090/lehman-v-shaker-heights/ | https://www.courtlistener.com/api/rest/v3/clusters/109090/ | 1,974 | 1973-161 | 1 | 5 | 4 | Petitioner, a candidate for state office, attempted to purchase space for paid political advertising on vehicles of the Shaker Heights Rapid Transit System, a system owned and operated by the city of Shaker Heights, Ohio. Metromedia, Inc., the exclusive advertising agent for the system, refused petitioner the space on the basis of a contract with the system prohibiting the acceptance of political advertisements. Petitioner unsuccessfully sought injunctive relief in the state courts to restrain the city and Metromedia from refusing his advertising.
The petitioner contends that, by selling advertising space, the city has turned its buses into free speech forums and the city is now prohibited by the First Amendment, applicable to the States through the Fourteenth,[1] from refusing space for political advertisements.
My Brother BRENNAN would find that "[a] forum for communication was voluntarily established when the city installed the physical facilities for the advertisements and, by contract with Metromedia, created the necessary administrative machinery for regulating access to that forum." Post, at 314. If the streetcar or bus were a forum for communication akin to that of streets or public parks, considerable problems would be presented. "The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all . . . but it must not, in the guise of regulation, be abridged or denied." Hague v. CIO, 307 U.S. 496, 515-516. *306 But a streetcar or bus is plainly not a park or sidewalk or other meeting place for discussion, any more than is a highway. It is only a way to get to work or back home. The fact that it is owned and operated by the city does not without more make it a forum.
Bus and streetcar placards are in the category of highway billboards which have long been used to display an array of commercial and political messages. But this particular form of communication has been significantly curtailed by state regulation adopted pursuant to the Highway Beautification Act of 1965, 23 U.S. C. § 131, which conditions certain federal highway funds upon strict regulation of highway advertising. Ohio is among the States which have sought to protect the interests of their motorists[2] by enacting regulations pursuant to the Act. Ohio Rev. Code Ann. § 5516.01 et seq. (Supp. 1973). The fact that land on which a billboard rests is municipal land does not curtail or enhance such regulatory schemes.
If a bus is a forum it is more akin to a newspaper than to a park. Yet if a bus is treated as a newspaper, then, as we hold this date, Miami Herald Publishing Co. v. Tornillo, ante, p. 241, the owner cannot be forced to include in his offerings news or other items which outsiders may desire but which the owner abhors. Newspaper cases are cited to support petitioner's claim. The First Amendment, however, draws no distinction between press privately owned, and press owned otherwise. And if we are to turn a bus or streetcar into either a newspaper or a park, we take great liberties with people *307 who because of necessity become commuters and at the same time captive viewers or listeners.
In asking us to force the system to accept his message as a vindication of his constitutional rights, the petitioner overlooks the constitutional rights of the commuters. While petitioner clearly has a right to express his views to those who wish to listen, he has no right to force his message upon an audience incapable of declining to receive it. In my view the right of the commuters to be free from forced intrusions on their privacy precludes the city from transforming its vehicles of public transportation into forums for the dissemination of ideas upon this captive audience.
Buses are not recreational vehicles used for Sunday chautauquas as a public park might be used on holidays for such a purpose; they are a practical necessity for millions in our urban centers. I have already stated this view in my dissent in Public Utilities Comm'n v. Pollak, 343 U.S. 451, 469, involving the challenge by some passengers to the practice of broadcasting radio programs over loudspeakers in buses and streetcars: "One who tunes in on an offensive program at home can turn it off or tune in another station, as he wishes. One who hears disquieting or unpleasant programs in public places, such as restaurants, can get up and leave. But the man on the streetcar has no choice but to sit and listen, or perhaps to sit and to try not to listen." There is no difference when the message is visual, not auricular. In each the viewer or listener is captive.
I agree with Mr. Justice Brandeis who, quoting from a Utah State Court decision,[3] said that the visual message in streetcars is no different, for " `[a]dvertisements of this sort are constantly before the eyes of observers *308 on the streets and in street cars to be seen without the exercise of choice or volition on their part. Other forms of advertising are ordinarily seen as a matter of choice on the part of the observer. . . . In the case of newspapers and magazines, there must be some seeking by the one who is to see and read the advertisement. The radio can be turned off, but not so the billboard or street car placard.' " Packer Corp. v. Utah, 285 U.S. 105, 110.
I do not view the content of the message as relevant either to petitioner's right to express it or to the commuters' right to be free from it. Commercial advertisements may be as offensive and intrusive to captive audiences as any political message. But the validity of the commercial advertising program is not before us since we are not faced with one complaining of an invasion of privacy through forced exposure to commercial ads. Since I do not believe that petitioner has any constitutional right to spread his message before this captive audience, I concur in the Court's judgment.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE STEWART, MR. JUSTICE MARSHALL, and MR. | Petitioner, a candidate for state office, attempted to purchase space for paid political advertising on vehicles of the Shaker Heights Rapid Transit System, a system owned and operated by the city of Shaker Heights, Ohio. Metromedia, Inc., the exclusive advertising agent for the system, refused petitioner the space on the basis of a contract with the system prohibiting the acceptance of political advertisements. Petitioner unsuccessfully sought injunctive relief in the state courts to restrain the city and Metromedia from refusing his advertising. The petitioner contends that, by selling advertising space, the city has turned its buses into free speech forums and the city is now prohibited by the First Amendment, applicable to the States through the Fourteenth,[1] from refusing space for political advertisements. My Brother BRENNAN would find that "[a] forum for communication was voluntarily established when the city installed the physical facilities for the advertisements and, by contract with Metromedia, created the necessary administrative machinery for regulating access to that forum." Post, at 314. If the streetcar or bus were a forum for communication akin to that of streets or public parks, considerable problems would be presented. "The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all but it must not, in the guise of regulation, be abridged or denied." *306 But a streetcar or bus is plainly not a park or sidewalk or other meeting place for discussion, any more than is a highway. It is only a way to get to work or back home. The fact that it is owned and operated by the city does not without more make it a forum. Bus and streetcar placards are in the category of highway billboards which have long been used to display an array of commercial and political messages. But this particular form of communication has been significantly curtailed by state regulation adopted pursuant to the Highway Beautification Act of 1965, 23 U.S. C. 131, which conditions certain federal highway funds upon strict regulation of highway advertising. Ohio is among the States which have sought to protect the interests of their motorists[2] by enacting regulations pursuant to the Act. Ohio Rev. Code Ann. 5516.01 et seq. (Supp. 1973). The fact that land on which a billboard rests is municipal land does not curtail or enhance such regulatory schemes. If a bus is a forum it is more akin to a newspaper than to a park. Yet if a bus is treated as a newspaper, then, as we hold this date, Miami Herald Publishing Co. v. Tornillo, ante, p. 241, the owner cannot be forced to include in his offerings news or other items which outsiders may desire but which the owner abhors. Newspaper cases are cited to support petitioner's claim. The First Amendment, however, draws no distinction between press privately owned, and press owned otherwise. And if we are to turn a bus or streetcar into either a newspaper or a park, we take great liberties with people *307 who because of necessity become commuters and at the same time captive viewers or listeners. In asking us to force the system to accept his message as a vindication of his constitutional rights, the petitioner overlooks the constitutional rights of the commuters. While petitioner clearly has a right to express his views to those who wish to listen, he has no right to force his message upon an audience incapable of declining to receive it. In my view the right of the commuters to be free from forced intrusions on their privacy precludes the city from transforming its vehicles of public transportation into forums for the dissemination of ideas upon this captive audience. Buses are not recreational vehicles used for Sunday chautauquas as a public park might be used on holidays for such a purpose; they are a practical necessity for millions in our urban centers. I have already stated this view in my dissent in Public Utilities involving the challenge by some passengers to the practice of broadcasting radio programs over loudspeakers in buses and streetcars: "One who tunes in on an offensive program at home can turn it off or tune in another station, as he wishes. One who hears disquieting or unpleasant programs in public places, such as restaurants, can get up and leave. But the man on the streetcar has no choice but to sit and listen, or perhaps to sit and to try not to listen." There is no difference when the message is visual, not auricular. In each the viewer or listener is captive. I agree with Mr. Justice Brandeis who, quoting from a Utah State Court decision,[3] said that the visual message in streetcars is no different, for " `[a]dvertisements of this sort are constantly before the eyes of observers *308 on the streets and in street cars to be seen without the exercise of choice or volition on their part. Other forms of advertising are ordinarily seen as a matter of choice on the part of the observer. In the case of newspapers and magazines, there must be some seeking by the one who is to see and read the advertisement. The radio can be turned off, but not so the billboard or street car placard.' " Packer I do not view the content of the message as relevant either to petitioner's right to express it or to the commuters' right to be free from it. Commercial advertisements may be as offensive and intrusive to captive audiences as any political message. But the validity of the commercial advertising program is not before us since we are not faced with one complaining of an invasion of privacy through forced exposure to commercial ads. Since I do not believe that petitioner has any constitutional right to spread his message before this captive audience, I concur in the Court's judgment. MR. JUSTICE BRENNAN, with whom MR. JUSTICE STEWART, MR. JUSTICE MARSHALL, and MR. |
Justice Scalia | majority | false | Stanford v. Kentucky | 1989-08-30T00:00:00 | null | https://www.courtlistener.com/opinion/112326/stanford-v-kentucky/ | https://www.courtlistener.com/api/rest/v3/clusters/112326/ | 1,989 | 1988-146 | 1 | 5 | 4 | These two consolidated cases require us to decide whether the imposition of capital punishment on an individual for a *365 crime committed at 16 or 17 years of age constitutes cruel and unusual punishment under the Eighth Amendment.
I
The first case, No. 87-5765, involves the shooting death of 20-year-old Barbel Poore in Jefferson County, Kentucky. Petitioner Kevin Stanford committed the murder on January 7, 1981, when he was approximately 17 years and 4 months of age. Stanford and his accomplice repeatedly raped and sodomized Poore during and after their commission of a robbery at a gas station where she worked as an attendant. They then drove her to a secluded area near the station, where Stanford shot her pointblank in the face and then in the back of her head. The proceeds from the robbery were roughly 300 cartons of cigarettes, two gallons of fuel, and a small amount of cash. A corrections officer testified that petitioner explained the murder as follows: " `[H]e said, I had to shoot her, [she] lived next door to me and she would recognize me. . . . I guess we could have tied her up or something or beat [her up] . . . and tell her if she tells, we would kill her. . . . Then after he said that he started laughing.' " 734 S.W.2d 781, 788 (Ky. 1987).
After Stanford's arrest, a Kentucky juvenile court conducted hearings to determine whether he should be transferred for trial as an adult under Ky. Rev. Stat. Ann. § 208.170 (Michie 1982). That statute provided that juvenile court jurisdiction could be waived and an offender tried as an adult if he was either charged with a Class A felony or capital crime, or was over 16 years of age and charged with a felony. Stressing the seriousness of petitioner's offenses and the unsuccessful attempts of the juvenile system to treat him for numerous instances of past delinquency, the juvenile court found certification for trial as an adult to be in the best interest of petitioner and the community.
*366 Stanford was convicted of murder, first-degree sodomy, first-degree robbery, and receiving stolen property, and was sentenced to death and 45 years in prison. The Kentucky Supreme Court affirmed the death sentence, rejecting Stanford's "deman[d] that he has a constitutional right to treatment." 734 S.W.2d, at 792. Finding that the record clearly demonstrated that "there was no program or treatment appropriate for the appellant in the juvenile justice system," the court held that the juvenile court did not err in certifying petitioner for trial as an adult. The court also stated that petitioner's "age and the possibility that he might be rehabilitated were mitigating factors appropriately left to the consideration of the jury that tried him." Ibid.
The second case before us today, No. 87-6026, involves the stabbing death of Nancy Allen, a 26-year-old mother of two who was working behind the sales counter of the convenience store she and David Allen owned and operated in Avondale, Missouri. Petitioner Heath Wilkins committed the murder on July 27, 1985, when he was approximately 16 years and 6 months of age. The record reflects that Wilkins' plan was to rob the store and murder "whoever was behind the counter" because "a dead person can't talk." While Wilkins' accomplice, Patrick Stevens, held Allen, Wilkins stabbed her, causing her to fall to the floor. When Stevens had trouble operating the cash register, Allen spoke up to assist him, leading Wilkins to stab her three more times in her chest. Two of these wounds penetrated the victim's heart. When Allen began to beg for her life, Wilkins stabbed her four more times in the neck, opening her carotid artery. After helping themselves to liquor, cigarettes, rolling papers, and approximately $450 in cash and checks, Wilkins and Stevens left Allen to die on the floor.
Because he was roughly six months short of the age of majority for purposes of criminal prosecution, Mo. Rev. Stat. § 211.021(1) (1986), Wilkins could not automatically be *367 tried as an adult under Missouri law. Before that could happen, the juvenile court was required to terminate juvenile court jurisdiction and certify Wilkins for trial as an adult under § 211.071, which permits individuals between 14 and 17 years of age who have committed felonies to be tried as adults. Relying on the "viciousness, force and violence" of the alleged crime, petitioner's maturity, and the failure of the juvenile justice system to rehabilitate him after previous delinquent acts, the juvenile court made the necessary certification.
Wilkins was charged with first-degree murder, armed criminal action, and carrying a concealed weapon. After the court found him competent, petitioner entered guilty pleas to all charges. A punishment hearing was held, at which both the State and petitioner himself urged imposition of the death sentence. Evidence at the hearing revealed that petitioner had been in and out of juvenile facilities since the age of eight for various acts of burglary, theft, and arson, had attempted to kill his mother by putting insecticide into Tylenol capsules, and had killed several animals in his neighborhood. Although psychiatric testimony indicated that Wilkins had "personality disorders," the witnesses agreed that Wilkins was aware of his actions and could distinguish right from wrong.
Determining that the death penalty was appropriate, the trial court entered the following order:
"[T]he court finds beyond reasonable doubt that the following aggravating circumstances exist:
"1. The murder in the first degree was committed while the defendant was engaged in the perpetration of the felony of robbery, and
"2. The murder in the first degree involved depravity of mind and that as a result thereof, it was outrageously or wantonly vile, horrible or inhuman." App. in No. 87-6026, p. 77.
*368 On mandatory review of Wilkins' death sentence, the Supreme Court of Missouri affirmed, rejecting the argument that the punishment violated the Eighth Amendment. 736 S.W.2d 409 (1987).
We granted certiorari in these cases, 488 U.S. 887 (1988) and 487 U.S. 1233 (1988), to decide whether the Eighth Amendment precludes the death penalty for individuals who commit crimes at 16 or 17 years of age.
II
The thrust of both Wilkins' and Stanford's arguments is that imposition of the death penalty on those who were juveniles when they committed their crimes falls within the Eighth Amendment's prohibition against "cruel and unusual punishments." Wilkins would have us define juveniles as individuals 16 years of age and under; Stanford would draw the line at 17.
Neither petitioner asserts that his sentence constitutes one of "those modes or acts of punishment that had been considered cruel and unusual at the time that the Bill of Rights was adopted." Ford v. Wainwright, 477 U.S. 399, 405 (1986). Nor could they support such a contention. At that time, the common law set the rebuttable presumption of incapacity to commit any felony at the age of 14, and theoretically permitted capital punishment to be imposed on anyone over the age of 7. See 4 W. Blackstone, Commentaries *23-*24; 1 M. Hale, Pleas of the Crown 24-29 (1800). See also In re Gault, 387 U.S. 1, 16 (1967); Streib, Death Penalty for Children: The American Experience with Capital Punishment for Crimes Committed While Under Age Eighteen, 36 Okla. L. Rev. 613, 614-615 (1983); Kean, The History of the Criminal Liability of Children, 53 L. Q. Rev. 364, 369-370 (1937). In accordance with the standards of this common-law tradition, at least 281 offenders under the age of 18 have been executed in this country, and at least 126 under the age of 17. See V. Streib, Death Penalty for Juveniles 57 (1987).
*369 Thus petitioners are left to argue that their punishment is contrary to the "evolving standards of decency that mark the progress of a maturing society," Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion). They are correct in asserting that this Court has "not confined the prohibition embodied in the Eighth Amendment to `barbarous' methods that were generally outlawed in the 18th century," but instead has interpreted the Amendment "in a flexible and dynamic manner." Gregg v. Georgia, 428 U.S. 153, 171 (1976) (opinion of Stewart, Powell, and STEVENS, JJ.). In determining what standards have "evolved," however, we have looked not to our own conceptions of decency, but to those of modern American society as a whole.[1] As we have said, "Eighth Amendment judgments should not be, or appear to be, merely the subjective views of individual Justices; judgment should be informed by objective factors to the maximum possible extent." Coker v. Georgia, 433 U.S. 584, 592 (1977) (plurality opinion). See also Penry v. Lynaugh, ante, at 331; Ford v. Wainwright, supra, at 406; Enmund v. Florida, 458 U.S. 782, 788-789 (1982); Furman v. Georgia, 408 U.S. 238, 277-279 (1972) (BRENNAN, J., concurring). This approach is dictated both by the language of the Amendment which proscribes only those punishments that are both "cruel and unusual" and by the "deference we owe to the decisions *370 of the state legislatures under our federal system," Gregg v. Georgia, supra, at 176.
III
"[F]irst" among the " `objective indicia that reflect the public attitude toward a given sanction' " are statutes passed by society's elected representatives. McCleskey v. Kemp, 481 U.S. 279, 300 (1987), quoting Gregg v. Georgia, supra, at 173. Of the 37 States whose laws permit capital punishment, 15 decline to impose it upon 16-year-old offenders and 12 decline to impose it on 17-year-old offenders.[2] This does *371 not establish the degree of national consensus this Court has previously thought sufficient to label a particular punishment cruel and unusual. In invalidating the death penalty for rape of an adult woman, we stressed that Georgia was the sole jurisdiction that authorized such a punishment. See Coker v. Georgia, supra, at 595-596. In striking down capital punishment for participation in a robbery in which an accomplice takes a life, we emphasized that only eight jurisdictions authorized similar punishment. Enmund v. Florida, supra, at 792. In finding that the Eighth Amendment precludes execution of the insane and thus requires an adequate hearing on the issue of sanity, we relied upon (in addition to the common-law rule) the fact that "no State in the Union" permitted such punishment. Ford v. Wainwright, 477 U. S., at 408. And in striking down a life sentence without parole under a recidivist statute, we stressed that "[i]t appears that [petitioner] was treated more severely than he would have been in any other State." Solem v. Helm, 463 U.S. 277, 300 (1983).
Since a majority of the States that permit capital punishment authorize it for crimes committed at age 16 or above,[3] petitioners' cases are more analogous to Tison v. Arizona, 481 U.S. 137 (1987), than Coker, Enmund, Ford, and Solem. In Tison, which upheld Arizona's imposition of the death penalty for major participation in a felony with reckless indifference to human life, we noted that only 11 of those jurisdictions *372 imposing capital punishment rejected its use in such circumstances. Id., at 154. As we noted earlier, here the number is 15 for offenders under 17, and 12 for offenders under 18. We think the same conclusion as in Tison is required in these cases.
Petitioners make much of the recently enacted federal statute providing capital punishment for certain drug-related offenses, but limiting that punishment to offenders 18 and over. The Anti-Drug Abuse Act of 1988, Pub. L. 100-690, 102 Stat. 4390, § 7001(l), 21 U.S. C. § 848(l) (1988 ed.). That reliance is entirely misplaced. To begin with, the statute in question does not embody a judgment by the Federal Legislature that no murder is heinous enough to warrant the execution of such a youthful offender, but merely that the narrow class of offense it defines is not. The congressional judgment on the broader question, if apparent at all, is to be found in the law that permits 16- and 17-year-olds (after appropriate findings) to be tried and punished as adults for all federal offenses, including those bearing a capital penalty that is not limited to 18-year-olds.[4] See 18 U.S. C. § 5032 (1982 ed., Supp. V). Moreover, even if it were true that no *373 federal statute permitted the execution of persons under 18, that would not remotely establish in the face of a substantial number of state statutes to the contrary a national consensus that such punishment is inhumane, any more than the absence of a federal lottery establishes a national consensus that lotteries are socially harmful. To be sure, the absence of a federal death penalty for 16- or 17-year-olds (if it existed) might be evidence that there is no national consensus in favor of such punishment. It is not the burden of Kentucky and Missouri, however, to establish a national consensus approving what their citizens have voted to do; rather, it is the "heavy burden" of petitioners, Gregg v. Georgia, 428 U. S., at 175, to establish a national consensus against it. As far as the primary and most reliable indication of consensus is concerned the pattern of enacted laws petitioners have failed to carry that burden.
IV
A
Wilkins and Stanford argue, however, that even if the laws themselves do not establish a settled consensus, the application of the laws does. That contemporary society views capital punishment of 16- and 17-year-old offenders as inappropriate is demonstrated, they say, by the reluctance of juries to impose, and prosecutors to seek, such sentences. Petitioners are quite correct that a far smaller number of offenders under 18 than over 18 have been sentenced to death in this country. From 1982 through 1988, for example, out of 2,106 total death sentences, only 15 were imposed on individuals who were 16 or under when they committed their crimes, and only 30 on individuals who were 17 at the time of the crime. See 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). And it appears that actual executions for crimes committed under age 18 accounted for only about two percent of the total number of executions that occurred between 1642 *374 and 1986. See Streib, Death Penalty for Juveniles, at 55, 57. As Wilkins points out, the last execution of a person who committed a crime under 17 years of age occurred in 1959. These statistics, however, carry little significance. Given the undisputed fact that a far smaller percentage of capital crimes are committed by persons under 18 than over 18, the discrepancy in treatment is much less than might seem. Granted, however, that a substantial discrepancy exists, that does not establish the requisite proposition that the death sentence for offenders under 18 is categorically unacceptable to prosecutors and juries. To the contrary, it is not only possible, but overwhelmingly probable, that the very considerations which induce petitioners and their 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.
B
This last point suggests why there is also no relevance to the laws cited by petitioners and their amici which set 18 or more as the legal age for engaging in various activities, ranging from driving to drinking alcoholic beverages to voting. It is, to begin with, 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. But even if the requisite degrees of maturity were comparable, the age statutes in question would still not be relevant. They do not represent a social judgment that all persons under the designated ages are not responsible enough to drive, to drink, or to vote, but at most a judgment that the vast majority are not. These laws set the appropriate ages for the operation of a system that makes its determinations in gross, and that does not conduct individualized maturity tests for each driver, drinker, or voter. The *375 criminal justice system, however, does provide individualized testing. In the realm of capital punishment in particular, "individualized consideration [is] a constitutional requirement," Lockett v. Ohio, 438 U.S. 586, 605 (1978) (opinion of Burger, C. J.) (footnote omitted); see also Zant v. Stephens, 462 U.S. 862, 879 (1983) (collecting cases), and one of the individualized mitigating factors that sentencers must be permitted to consider is the defendant's age, see Eddings v. Oklahoma, 455 U.S. 104, 115-116 (1982). Twenty-nine States, including both Kentucky and Missouri, have codified this constitutional requirement in laws specifically designating the defendant's age as a mitigating factor in capital cases.[5] Moreover, the determinations required by juvenile transfer statutes to certify a juvenile for trial as an adult ensure individualized consideration of the maturity and moral responsibility of 16- and 17-year-old offenders before they are even held to stand trial as adults.[6] The application of this *376 particularized system to the petitioners can be declared constitutionally inadequate only if there is a consensus, not that 17 or 18 is the age at which most persons, or even almost all persons, achieve sufficient maturity to be held fully responsible for murder; but that 17 or 18 is the age before which no one can reasonably be held fully responsible. What displays society's views on this latter point are not the ages set forth in the generalized system of driving, drinking, and voting laws cited by petitioners and their amici, but the ages at *377 which the States permit their particularized capital punishment systems to be applied.[7]
V
Having failed to establish a consensus against capital punishment for 16- and 17-year-old offenders through state and federal statutes and the behavior of prosecutors and juries, petitioners seek to demonstrate it through other indicia, including public opinion polls, the views of interest groups, and the positions adopted by various professional associations. We decline the invitation to rest constitutional law upon such uncertain foundations. A revised national consensus so broad, so clear, and so enduring as to justify a permanent prohibition upon all units of democratic government must appear in the operative acts (laws and the application of laws) that the people have approved.
We also reject petitioners' argument that we should invalidate capital punishment of 16- and 17-year-old offenders on the ground that it fails to serve the legitimate goals of penology. According to petitioners, it fails to deter because juveniles, possessing less developed cognitive skills than adults, are less likely to fear death; and it fails to exact just retribution because juveniles, being less mature and responsible, are also less morally blameworthy. In support of these claims, petitioners and their supporting amici marshal an array of *378 socioscientific evidence concerning the psychological and emotional development of 16- and 17-year-olds.
If such evidence could conclusively establish the entire lack of deterrent effect and moral responsibility, resort to the Cruel and Unusual Punishments Clause would be unnecessary; the Equal Protection Clause of the Fourteenth Amendment would invalidate these laws for lack of rational basis. See Dallas v. Stanglin, 490 U.S. 19 (1989). But as the adjective "socioscientific" suggests (and insofar as evaluation of moral responsibility is concerned perhaps the adjective "ethicoscientific" would be more apt), it is not demonstrable that no 16-year-old is "adequately responsible" or significantly deterred. It is rational, even if mistaken, to think the contrary. The battle must be fought, then, on the field of the Eighth Amendment; and in that struggle socioscientific, ethicoscientific, or even purely scientific evidence is not an available weapon. The punishment is either "cruel and unusual" (i. e., society has set its face against it) or it is not. The audience for these arguments, in other words, is not this Court but the citizenry of the United States. It is they, not we, who must be persuaded. For as we stated earlier, our job is to identify the "evolving standards of decency"; to determine, not what they should be, but what they are. We have no power under the Eighth Amendment to substitute our belief in the scientific evidence for the society's apparent skepticism. In short, we emphatically reject petitioner's suggestion that the issues in this case permit us to apply our "own informed judgment," Brief for Petitioner in No. 87-6026, p. 23, regarding the desirability of permitting the death penalty for crimes by 16- and 17-year-olds.
We reject the dissent's contention that our approach, by "largely return[ing] the task of defining the contours of Eighth Amendment protection to political majorities," leaves " `[c]onstitutional doctrine [to] be formulated by the acts of those institutions which the Constitution is supposed to limit,' " post, at 391, 392 (citation omitted). When this Court *379 cast loose from the historical moorings consisting of the original application of the Eighth Amendment, it did not embark rudderless upon a wide-open sea. Rather, it limited the Amendment's extension to those practices contrary to the "evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, 356 U. S., at 101 (plurality opinion) (emphasis added). It has never been thought that this was a shorthand reference to the preferences of a majority of this Court. By reaching a decision supported neither by constitutional text nor by the demonstrable current standards of our citizens, the dissent displays a failure to appreciate that "those institutions which the Constitution is supposed to limit" include the Court itself. To say, as the dissent says, that " `it is for us ultimately to judge whether the Eighth Amendment permits imposition of the death penalty,' " post, at 391 (emphasis added), quoting Enmund v. Florida, 458 U. S., at 797 and to mean that as the dissent means it, i. e., that it is for us to judge, not on the basis of what we perceive the Eighth Amendment originally prohibited, or on the basis of what we perceive the society through its democratic processes now overwhelmingly disapproves, but on the basis of what we think "proportionate" and "measurably contributory to acceptable goals of punishment" to say and mean that, is to replace judges of the law with a committee of philosopher-kings.
While the dissent is correct that several of our cases have engaged in so-called "proportionality" analysis, examining whether "there is a disproportion `between the punishment imposed and the defendant's blameworthiness,' " and whether a punishment makes any "measurable contribution to acceptable goals of punishment," see post, at 393, we have never invalidated a punishment on this basis alone. All of our cases condemning a punishment under this mode of analysis also found that the objective indicators of state laws or jury determinations evidenced a societal consensus against that penalty. See Solem v. Helm, 463 U. S., at 299-300; *380 Enmund v. Florida, supra, at 789-796; Coker v. Georgia, 433 U. S., at 593-597 (plurality opinion). In fact, the two methodologies blend into one another, since "proportionality" analysis itself can only be conducted on the basis of the standards set by our own society; the only alternative, once again, would be our personal preferences.
* * *
We discern neither a historical nor a modern societal consensus forbidding the imposition of capital punishment on any person who murders at 16 or 17 years of age. Accordingly, we conclude that such punishment does not offend the Eighth Amendment's prohibition against cruel and unusual punishment.
The judgments of the Supreme Court of Kentucky and the Supreme Court of Missouri are therefore
Affirmed.
JUSTICE O'CONNOR, concurring in part and concurring in the judgment. | These two consolidated cases require us to decide whether the imposition of capital punishment on an individual for a *365 crime committed at or 17 years of age constitutes cruel and unusual punishment under the Eighth Amendment. I The first case, No. 87-5765, involves the shooting death of 20-year-old Barbel Poore in Jefferson County, Kentucky. Petitioner Kevin Stanford committed the murder on January 7, 1981, when he was approximately 17 years and 4 months of age. Stanford and his accomplice repeatedly raped and sodomized Poore during and after their commission of a robbery at a gas station where she worked as an attendant. They then drove her to a secluded area near the station, where Stanford shot her pointblank in the face and then in the back of her head. The proceeds from the robbery were roughly cartons of cigarettes, two gallons of fuel, and a small amount of cash. A corrections officer testified that petitioner explained the murder as follows: " `[H]e said, I had to shoot her, [she] lived next door to me and she would recognize me. I guess we could have tied her up or something or beat [her up] and tell her if she tells, we would kill her. Then after he said that he started laughing.' " After Stanford's arrest, a Kentucky juvenile court conducted hearings to determine whether he should be transferred for trial as an adult under That statute provided that juvenile court jurisdiction could be waived and an offender tried as an adult if he was either charged with a Class A felony or capital crime, or was over years of age and charged with a felony. Stressing the seriousness of petitioner's offenses and the unsuccessful attempts of the juvenile system to treat him for numerous instances of past delinquency, the juvenile court found certification for trial as an adult to be in the best interest of petitioner and the community. *366 Stanford was convicted of murder, first-degree sodomy, first-degree robbery, and receiving stolen property, and was sentenced to death and 45 years in prison. The Kentucky Supreme Court affirmed the death sentence, rejecting Stanford's "deman[d] that he has a constitutional right to treatment." Finding that the record clearly demonstrated that "there was no program or treatment appropriate for the appellant in the juvenile justice system," the court held that the juvenile court did not err in certifying petitioner for trial as an adult. The court also stated that petitioner's "age and the possibility that he might be rehabilitated were mitigating factors appropriately left to the consideration of the jury that tried him." The second case before us today, No. 87-6026, involves the stabbing death of Nancy Allen, a 26-year-old mother of two who was working behind the sales counter of the convenience store she and David Allen owned and operated in Avondale, Missouri. Petitioner Heath Wilkins committed the murder on July 27, 1985, when he was approximately years and 6 months of age. The record reflects that Wilkins' plan was to rob the store and murder "whoever was behind the counter" because "a dead person can't talk." While Wilkins' accomplice, Patrick Stevens, held Allen, Wilkins stabbed her, causing her to fall to the floor. When Stevens had trouble operating the cash register, Allen spoke up to assist him, leading Wilkins to stab her three more times in her chest. Two of these wounds penetrated the victim's heart. When Allen began to beg for her life, Wilkins stabbed her four more times in the neck, opening her carotid artery. After helping themselves to liquor, cigarettes, rolling papers, and approximately $450 in cash and checks, Wilkins and Stevens left Allen to die on the floor. Because he was roughly six months short of the age of majority for purposes of criminal prosecution, (1) Wilkins could not automatically be *367 tried as an adult under Missouri law. Before that could happen, the juvenile court was required to terminate juvenile court jurisdiction and certify Wilkins for trial as an adult under 211.071, which permits individuals between 14 and 17 years of age who have committed felonies to be tried as adults. Relying on the "viciousness, force and violence" of the alleged crime, petitioner's maturity, and the failure of the juvenile justice system to rehabilitate him after previous delinquent acts, the juvenile court made the necessary certification. Wilkins was charged with first-degree murder, armed criminal action, and carrying a concealed weapon. After the court found him competent, petitioner entered guilty pleas to all charges. A punishment hearing was held, at which both the State and petitioner himself urged imposition of the death sentence. Evidence at the hearing revealed that petitioner had been in and out of juvenile facilities since the age of eight for various acts of burglary, theft, and arson, had attempted to kill his mother by putting insecticide into Tylenol capsules, and had killed several animals in his neighborhood. Although psychiatric testimony indicated that Wilkins had "personality disorders," the witnesses agreed that Wilkins was aware of his actions and could distinguish right from wrong. Determining that the death penalty was appropriate, the trial court entered the following order: "[T]he court finds beyond reasonable doubt that the following aggravating circumstances exist: "1. The murder in the first degree was committed while the defendant was engaged in the perpetration of the felony of robbery, and "2. The murder in the first degree involved depravity of mind and that as a result thereof, it was outrageously or wantonly vile, horrible or inhuman." App. in No. 87-6026, p. 77. *368 On mandatory review of Wilkins' death sentence, the Supreme Court of Missouri affirmed, rejecting the argument that the punishment violated the Eighth Amendment. We granted certiorari in these cases, and to decide whether the Eighth Amendment precludes the death penalty for individuals who commit crimes at or 17 years of age. II The thrust of both Wilkins' and Stanford's arguments is that imposition of the death penalty on those who were juveniles when they committed their crimes falls within the Eighth Amendment's prohibition against "cruel and unusual punishments." Wilkins would have us define juveniles as individuals years of age and under; Stanford would draw the line at 17. Neither petitioner asserts that his sentence constitutes one of "those modes or acts of punishment that had been considered cruel and unusual at the time that the Bill of Rights was adopted." Nor could they support such a contention. At that time, the common law set the rebuttable presumption of incapacity to commit any felony at the age of 14, and theoretically permitted capital punishment to be imposed on anyone over the age of 7. See 4 W. Blackstone, Commentaries *23-*24; 1 M. Hale, Pleas of the Crown 24-29 (1800). See also In re Gault, ; Streib, Death Penalty for Children: The American Experience with Capital Punishment for Crimes Committed While Under Age Eighteen, ; Kean, The History of the Criminal Liability of Children, 53 L. Q. Rev. 364, 369-370 (1937). In accordance with the standards of this common-law tradition, at least 281 offenders under the age of 18 have been executed in this country, and at least 126 under the age of 17. See V. Streib, Death Penalty for Juveniles 57 *369 Thus petitioners are left to argue that their punishment is contrary to the "evolving standards of decency that mark the progress of a maturing society," They are correct in asserting that this Court has "not confined the prohibition embodied in the Eighth Amendment to `barbarous' methods that were generally outlawed in the 18th century," but instead has interpreted the Amendment "in a flexible and dynamic manner." In determining what standards have "evolved," however, we have looked not to our own conceptions of decency, but to those of modern American society as a whole.[1] As we have said, "Eighth Amendment judgments should not be, or appear to be, merely the subjective views of individual Justices; judgment should be informed by objective factors to the maximum possible extent." See also Penry v. Lynaugh, ante, at 331; ; -789 ; This approach is dictated both by the language of the Amendment which proscribes only those punishments that are both "cruel and unusual" and by the "deference we owe to the decisions *370 of the state legislatures under our federal system," III "[F]irst" among the " `objective indicia that reflect the public attitude toward a given sanction' " are statutes passed by society's elected representatives. quoting Of the 37 States whose laws permit capital punishment, 15 decline to impose it upon -year-old offenders and 12 decline to impose it on 17-year-old offenders.[2] This does *371 not establish the degree of national consensus this Court has previously thought sufficient to label a particular punishment cruel and unusual. In invalidating the death penalty for rape of an adult woman, we stressed that was the sole jurisdiction that authorized such a punishment. See In striking down capital punishment for participation in a robbery in which an accomplice takes a life, we emphasized that only eight jurisdictions authorized similar punishment. In finding that the Eighth Amendment precludes execution of the insane and thus requires an adequate hearing on the issue of sanity, we relied upon (in addition to the common-law rule) the fact that "no State in the Union" permitted such punishment. And in striking down a life sentence without parole under a recidivist statute, we stressed that "[i]t appears that [petitioner] was treated more severely than he would have been in any other State." Since a majority of the States that permit capital punishment authorize it for crimes committed at age or above,[3] petitioners' cases are more analogous to than Coker, Enmund, Ford, and Solem. In Tison, which upheld Arizona's imposition of the death penalty for major participation in a felony with reckless indifference to human life, we noted that only 11 of those jurisdictions *372 imposing capital punishment rejected its use in such circumstances. As we noted earlier, here the number is 15 for offenders under 17, and 12 for offenders under 18. We think the same conclusion as in Tison is required in these cases. Petitioners make much of the recently enacted federal statute providing capital punishment for certain drug-related offenses, but limiting that punishment to offenders 18 and over. The Anti-Drug Abuse Act of 1988, Stat. 4390, 7001(l), 21 U.S. C. 848(l) (1988 ed.). That reliance is entirely misplaced. To begin with, the statute in question does not embody a judgment by the Federal Legislature that no murder is heinous enough to warrant the execution of such a youthful offender, but merely that the narrow class of offense it defines is not. The congressional judgment on the broader question, if apparent at all, is to be found in the law that permits - and 17-year-olds (after appropriate findings) to be tried and punished as adults for all federal offenses, including those bearing a capital penalty that is not limited to 18-year-olds.[4] See 18 U.S. C. 5032 (1982 ed., Supp. V). Moreover, even if it were true that no *373 federal statute permitted the execution of persons under 18, that would not remotely establish in the face of a substantial number of state statutes to the contrary a national consensus that such punishment is inhumane, any more than the absence of a federal lottery establishes a national consensus that lotteries are socially harmful. To be sure, the absence of a federal death penalty for - or 17-year-olds (if it existed) might be evidence that there is no national consensus in favor of such punishment. It is not the burden of Kentucky and Missouri, however, to establish a national consensus approving what their citizens have voted to do; rather, it is the "heavy burden" of petitioners, to establish a national consensus against it. As far as the primary and most reliable indication of consensus is concerned the pattern of enacted laws petitioners have failed to carry that burden. IV A Wilkins and Stanford argue, however, that even if the laws themselves do not establish a settled consensus, the application of the laws does. That contemporary society views capital punishment of - and 17-year-old offenders as inappropriate is demonstrated, they say, by the reluctance of juries to impose, and prosecutors to seek, such sentences. Petitioners are quite correct that a far smaller number of offenders under 18 than over 18 have been sentenced to death in this country. From 1982 through 1988, for example, out of 2,106 total death sentences, only 15 were imposed on individuals who were or under when they committed their crimes, and only 30 on individuals who were 17 at the time of the crime. See Streib, Imposition of Death Sentences For Juvenile Offenses, January 1, 1982, Through April 1, 1989, p. 2 And it appears that actual executions for crimes committed under age 18 accounted for only about two percent of the total number of executions that occurred between 42 *374 and 1986. See Streib, Death Penalty for Juveniles, at 55, 57. As Wilkins points out, the last execution of a person who committed a crime under 17 years of age occurred in 1959. These statistics, however, carry little significance. Given the undisputed fact that a far smaller percentage of capital crimes are committed by persons under 18 than over 18, the discrepancy in treatment is much less than might seem. Granted, however, that a substantial discrepancy exists, that does not establish the requisite proposition that the death sentence for offenders under 18 is categorically unacceptable to prosecutors and juries. To the contrary, it is not only possible, but overwhelmingly probable, that the very considerations which induce petitioners and their 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. B This last point suggests why there is also no relevance to the laws cited by petitioners and their amici which set 18 or more as the legal age for engaging in various activities, ranging from driving to drinking alcoholic beverages to voting. It is, to begin with, 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. But even if the requisite degrees of maturity were comparable, the age statutes in question would still not be relevant. They do not represent a social judgment that all persons under the designated ages are not responsible enough to drive, to drink, or to vote, but at most a judgment that the vast majority are not. These laws set the appropriate ages for the operation of a system that makes its determinations in gross, and that does not conduct individualized maturity tests for each driver, drinker, or voter. The *375 criminal justice system, however, does provide individualized testing. In the realm of capital punishment in particular, "individualized consideration [is] a constitutional requirement," (footnote omitted); see also and one of the individualized mitigating factors that sentencers must be permitted to consider is the defendant's age, see 115-1 Twenty-nine States, including both Kentucky and Missouri, have codified this constitutional requirement in laws specifically designating the defendant's age as a mitigating factor in capital cases.[5] Moreover, the determinations required by juvenile transfer statutes to certify a juvenile for trial as an adult ensure individualized consideration of the maturity and moral responsibility of - and 17-year-old offenders before they are even held to stand trial as adults.[6] The application of this *376 particularized system to the petitioners can be declared constitutionally inadequate only if there is a consensus, not that 17 or 18 is the age at which most persons, or even almost all persons, achieve sufficient maturity to be held fully responsible for murder; but that 17 or 18 is the age before which no one can reasonably be held fully responsible. What displays society's views on this latter point are not the ages set forth in the generalized system of driving, drinking, and voting laws cited by petitioners and their amici, but the ages at *377 which the States permit their particularized capital punishment systems to be applied.[7] V Having failed to establish a consensus against capital punishment for - and 17-year-old offenders through state and federal statutes and the behavior of prosecutors and juries, petitioners seek to demonstrate it through other indicia, including public opinion polls, the views of interest groups, and the positions adopted by various professional associations. We decline the invitation to rest constitutional law upon such uncertain foundations. A revised national consensus so broad, so clear, and so enduring as to justify a permanent prohibition upon all units of democratic government must appear in the operative acts (laws and the application of laws) that the people have approved. We also reject petitioners' argument that we should invalidate capital punishment of - and 17-year-old offenders on the ground that it fails to serve the legitimate goals of penology. According to petitioners, it fails to deter because juveniles, possessing less developed cognitive skills than adults, are less likely to fear death; and it fails to exact just retribution because juveniles, being less mature and responsible, are also less morally blameworthy. In support of these claims, petitioners and their supporting amici marshal an array of *378 socioscientific evidence concerning the psychological and emotional development of - and 17-year-olds. If such evidence could conclusively establish the entire lack of deterrent effect and moral responsibility, resort to the Cruel and Unusual Punishments Clause would be unnecessary; the Equal Protection Clause of the Fourteenth Amendment would invalidate these laws for lack of rational basis. See But as the adjective "socioscientific" suggests (and insofar as evaluation of moral responsibility is concerned perhaps the adjective "ethicoscientific" would be more apt), it is not demonstrable that no -year-old is "adequately responsible" or significantly deterred. It is rational, even if mistaken, to think the contrary. The battle must be fought, then, on the field of the Eighth Amendment; and in that struggle socioscientific, ethicoscientific, or even purely scientific evidence is not an available weapon. The punishment is either "cruel and unusual" (i. e., society has set its face against it) or it is not. The audience for these arguments, in other words, is not this Court but the citizenry of the United States. It is they, not we, who must be persuaded. For as we stated earlier, our job is to identify the "evolving standards of decency"; to determine, not what they should be, but what they are. We have no power under the Eighth Amendment to substitute our belief in the scientific evidence for the society's apparent skepticism. In short, we emphatically reject petitioner's suggestion that the issues in this case permit us to apply our "own informed judgment," Brief for Petitioner in No. 87-6026, p. 23, regarding the desirability of permitting the death penalty for crimes by - and 17-year-olds. We reject the dissent's contention that our approach, by "largely return[ing] the task of defining the contours of Eighth Amendment protection to political majorities," leaves " `[c]onstitutional doctrine [to] be formulated by the acts of those institutions which the Constitution is supposed to limit,' " post, at 391, 392 (citation omitted). When this Court *379 cast loose from the historical moorings consisting of the original application of the Eighth Amendment, it did not embark rudderless upon a wide-open sea. Rather, it limited the Amendment's extension to those practices contrary to the "evolving standards of decency that mark the progress of a maturing society." 356 U. S., at (emphasis added). It has never been thought that this was a shorthand reference to the preferences of a majority of this Court. By reaching a decision supported neither by constitutional text nor by the demonstrable current standards of our citizens, the dissent displays a failure to appreciate that "those institutions which the Constitution is supposed to limit" include the Court itself. To say, as the dissent says, that " `it is for us ultimately to judge whether the Eighth Amendment permits imposition of the death penalty,' " post, at 391 (emphasis added), quoting and to mean that as the dissent means it, i. e., that it is for us to judge, not on the basis of what we perceive the Eighth Amendment originally prohibited, or on the basis of what we perceive the society through its democratic processes now overwhelmingly disapproves, but on the basis of what we think "proportionate" and "measurably contributory to acceptable goals of punishment" to say and mean that, is to replace judges of the law with a committee of philosopher-kings. While the dissent is correct that several of our cases have engaged in so-called "proportionality" analysis, examining whether "there is a disproportion `between the punishment imposed and the defendant's blameworthiness,' " and whether a punishment makes any "measurable contribution to acceptable goals of punishment," see post, at 393, we have never invalidated a punishment on this basis alone. All of our cases condemning a punishment under this mode of analysis also found that the objective indicators of state laws or jury determinations evidenced a societal consensus against that penalty. See -; *380 ; -597 In fact, the two methodologies blend into one another, since "proportionality" analysis itself can only be conducted on the basis of the standards set by our own society; the only alternative, once again, would be our personal preferences. * * * We discern neither a historical nor a modern societal consensus forbidding the imposition of capital punishment on any person who murders at or 17 years of age. Accordingly, we conclude that such punishment does not offend the Eighth Amendment's prohibition against cruel and unusual punishment. The judgments of the Supreme Court of Kentucky and the Supreme Court of Missouri are therefore Affirmed. JUSTICE O'CONNOR, concurring in part and concurring in the judgment. |
Justice Stewart | concurring | false | Roe v. Wade | 1973-01-22T00:00:00 | null | https://www.courtlistener.com/opinion/108713/roe-v-wade/ | https://www.courtlistener.com/api/rest/v3/clusters/108713/ | 1,973 | 1972-048 | 2 | 7 | 2 | In 1963, this Court, in Ferguson v. Skrupa, 372 U.S. 726, purported to sound the death knell for the doctrine of substantive due process, a doctrine under which many state laws had in the past been held to violate the Fourteenth Amendment. As Mr. Justice Black's opinion for the Court in Skrupa put it: "We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws." Id., at 730.[1]
Barely two years later, in Griswold v. Connecticut, 381 U.S. 479, the Court held a Connecticut birth control law unconstitutional. In view of what had been so recently said in Skrupa, the Court's opinion in Griswold understandably did its best to avoid reliance on the Due Process Clause of the Fourteenth Amendment as the ground for decision. Yet, the Connecticut law did not violate any provision of the Bill of Rights, nor any other specific provision of the Constitution.[2] So it was clear *168 to me then, and it is equally clear to me now, that the Griswold decision can be rationally understood only as a holding that the Connecticut statute substantively invaded the "liberty" that is protected by the Due Process Clause of the Fourteenth Amendment.[3] As so understood, Griswold stands as one in a long line of pre-Skrupa cases decided under the doctrine of substantive due process, and I now accept it as such.
"In a Constitution for a free people, there can be no doubt that the meaning of `liberty' must be broad indeed." Board of Regents v. Roth, 408 U.S. 564, 572. The Constitution nowhere mentions a specific right of personal choice in matters of marriage and family life, but the "liberty" protected by the Due Process Clause of the Fourteenth Amendment covers more than those freedoms explicitly named in the Bill of Rights. See Schware v. Board of Bar Examiners, 353 U.S. 232, 238-239; Pierce v. Society of Sisters, 268 U.S. 510, 534-535; Meyer v. Nebraska, 262 U.S. 390, 399-400. Cf. Shapiro v. Thompson, 394 U.S. 618, 629-630; United States v. Guest, 383 U.S. 745, 757-758; Carrington v. Rash, 380 U.S. 89, 96; Aptheker v. Secretary of State, 378 U.S. 500, 505; Kent v. Dulles, 357 U.S. 116, 127; Bolling v. Sharpe, 347 U.S. 497, 499-500; Truax v. Raich, 239 U.S. 33, 41.
*169 As Mr. Justice Harlan once wrote: "[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This `liberty' is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints. . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment." Poe v. Ullman, 367 U.S. 497, 543 (opinion dissenting from dismissal of appeal) (citations omitted). In the words of Mr. Justice Frankfurter, "Great concepts like . . . `liberty' . . . were purposely left to gather meaning from experience. For they relate to the whole domain of social and economic fact, and the statesmen who founded this Nation knew too well that only a stagnant society remains unchanged." National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 646 (dissenting opinion).
Several decisions of this Court make clear that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. Loving v. Virginia, 388 U.S. 1, 12; Griswold v. Connecticut, supra; Pierce v. Society of Sisters, supra; Meyer v. Nebraska, supra. See also Prince v. Massachusetts, 321 U.S. 158, 166; Skinner v. Oklahoma, 316 U.S. 535, 541. As recently as last Term, in Eisenstadt v. Baird, 405 U.S. 438, 453, we recognized "the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person *170 as the decision whether to bear or beget a child." That right necessarily includes the right of a woman to decide whether or not to terminate her pregnancy. "Certainly the interests of a woman in giving of her physical and emotional self during pregnancy and the interests that will be affected throughout her life by the birth and raising of a child are of a far greater degree of significance and personal intimacy than the right to send a child to private school protected in Pierce v. Society of Sisters, 268 U.S. 510 (1925), or the right to teach a foreign language protected in Meyer v. Nebraska, 262 U.S. 390 (1923)." Abele v. Markle, 351 F. Supp. 224, 227 (Conn. 1972).
Clearly, therefore, the Court today is correct in holding that the right asserted by Jane Roe is embraced within the personal liberty protected by the Due Process Clause of the Fourteenth Amendment.
It is evident that the Texas abortion statute infringes that right directly. Indeed, it is difficult to imagine a more complete abridgment of a constitutional freedom than that worked by the inflexible criminal statute now in force in Texas. The question then becomes whether the state interests advanced to justify this abridgment can survive the "particularly careful scrutiny" that the Fourteenth Amendment here requires.
The asserted state interests are protection of the health and safety of the pregnant woman, and protection of the potential future human life within her. These are legitimate objectives, amply sufficient to permit a State to regulate abortions as it does other surgical procedures, and perhaps sufficient to permit a State to regulate abortions more stringently or even to prohibit them in the late stages of pregnancy. But such legislation is not before us, and I think the Court today has thoroughly demonstrated that these state interests cannot constitutionally support the broad abridgment of personal *171 liberty worked by the existing Texas law. Accordingly, I join the Court's opinion holding that that law is invalid under the Due Process Clause of the Fourteenth Amendment.
MR. | In 13, this Court, in purported to sound the death knell for the doctrine of substantive due process, a doctrine under which many state laws had in the past been held to violate the Fourteenth Amendment. As Mr. Justice Black's opinion for the Court in Skrupa put it: "We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws."[1] Barely two years later, in the Court held a birth control law unconstitutional. In view of what had been so recently said in Skrupa, the Court's opinion in Griswold understandably did its best to avoid reliance on the Due Process Clause of the Fourteenth Amendment as the ground for decision. Yet, the law did not violate any provision of the Bill of Rights, nor any other specific provision of the Constitution.[2] So it was clear *168 to me then, and it is equally clear to me now, that the Griswold decision can be rationally understood only as a holding that the statute substantively invaded the "liberty" that is protected by the Due Process Clause of the Fourteenth Amendment.[3] As so understood, Griswold stands as one in a long line of pre-Skrupa cases decided under the doctrine of substantive due process, and I now accept it as such. "In a Constitution for a free people, there can be no doubt that the meaning of `liberty' must be broad indeed." Board of The Constitution nowhere mentions a specific right of personal choice in matters of marriage and family life, but the "liberty" protected by the Due Process Clause of the Fourteenth Amendment covers more than those freedoms explicitly named in the Bill of Rights. See ; ; Cf. U.S. 618, 629-630; United ; ; ; ; ; *169 As Mr. Justice Harlan once wrote: "[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This `liberty' is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints. and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment." (opinion dissenting from dismissal of appeal) (citations omitted). In the words of Mr. Justice Frankfurter, "Great concepts like `liberty' were purposely left to gather meaning from experience. For they relate to the whole domain of social and economic fact, and the statesmen who founded this Nation knew too well that only a stagnant society remains unchanged." National Mutual Ins. (dissenting opinion). Several decisions of this Court make clear that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. ; See also ; 5. As recently as last Term, in we recognized "the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person *170 as the decision whether to bear or beget a child." That right necessarily includes the right of a woman to decide whether or not to terminate her pregnancy. "Certainly the interests of a woman in giving of her physical and emotional self during pregnancy and the interests that will be affected throughout her life by the birth and raising of a child are of a far greater degree of significance and personal intimacy than the right to send a child to private school protected in or the right to teach a foreign language protected in" Clearly, therefore, the Court today is correct in holding that the right asserted by Jane Roe is embraced within the personal liberty protected by the Due Process Clause of the Fourteenth Amendment. It is evident that the Texas abortion statute infringes that right directly. Indeed, it is difficult to imagine a more complete abridgment of a constitutional freedom than that worked by the inflexible criminal statute now in force in Texas. The question then becomes whether the state interests advanced to justify this abridgment can survive the "particularly careful scrutiny" that the Fourteenth Amendment here requires. The asserted state interests are protection of the health and safety of the pregnant woman, and protection of the potential future human life within her. These are legitimate objectives, amply sufficient to permit a State to regulate abortions as it does other surgical procedures, and perhaps sufficient to permit a State to regulate abortions more stringently or even to prohibit them in the late stages of pregnancy. But such legislation is not before us, and I think the Court today has thoroughly demonstrated that these state interests cannot constitutionally support the broad abridgment of personal *171 liberty worked by the existing Texas law. Accordingly, I join the Court's opinion holding that that law is invalid under the Due Process Clause of the Fourteenth Amendment. MR. |
Justice Brennan | dissenting | false | Baker v. General Motors Corp. | 1986-07-02T00:00:00 | null | https://www.courtlistener.com/opinion/111752/baker-v-general-motors-corp/ | https://www.courtlistener.com/api/rest/v3/clusters/111752/ | 1,986 | 1985-158 | 1 | 6 | 3 | The State of Michigan disqualifies an individual from receiving unemployment benefits for "financing" the labor dispute that causes his unemployment. Mich. Comp. Laws § 421.29(8)(a)(ii) (Supp. 1986). As construed by the Michigan *639 Supreme Court, this means that an unemployed individual is denied benefits for making a significant financial contribution to a labor organization "in temporal proximity" to the labor dispute that caused his unemployment if that contribution was "for the purpose of assisting labor disputes which reasonably and foreseeably include the dispute that caused the [individual's] unemployment." 420 Mich. 463, 506, 363 N.W.2d 602, 621-622 (1984). Because I believe that, as so construed, this statute conflicts with the National Labor Relations Act (NLRA) in a way that Congress did not intend to permit, I respectfully dissent from the Court's opinion and judgment.
In enacting Title IX of the Social Security Act, Congress left the States a "wide range" of discretion to establish qualifications for receiving unemployment benefits. Steward Machine Co. v. Davis, 301 U.S. 548, 593 (1937); see also Ohio Bureau of Employment Services v. Hodory, 431 U.S. 471, 482-489 (1977). We have previously found evidence in the legislative history of the Social Security Act indicating that Congress intended that this broad grant of authority should include power to authorize or deny unemployment benefits in ways that may interfere with the smooth operation of the federal labor laws. Thus, in New York Telephone Co. v. New York State Dept. of Labor, 440 U.S. 519 (1979), we held that the States were free to authorize or to prohibit payment of unemployment benefits to striking workers notwithstanding the impact of such payments on the collective-bargaining process. We based our conclusion on evidence in the legislative history of the Social Security Act specifically indicating that Congress intended to leave the States such authority. Id., at 540-546 (plurality opinion); see also, id., at 546-547 (BRENNAN, J., concurring in result); id., at 549 (BLACKMUN, J., concurring in judgment).
It is clear, however, that the States' discretion to fashion qualifications for unemployment compensation is not boundless, and that state laws that conflict with the NLRA in ways *640 that Congress did not intend to permit are pre-empted. For example, in Nash v. Florida Industrial Comm'n, 389 U.S. 235 (1967), petitioner filed an unfair labor practice charge with the National Labor Relations Board alleging that she had been laid off in retaliation for union activities. The Florida Industrial Commission determined that filing charges with the NLRB initiated a "labor dispute" within the meaning of the Florida statute denying benefits to individuals unemployed "due to a labor dispute." We concluded that the effect of such a disqualification on national labor policy was too great:
"The action of Florida here, like the coercive actions which employers and unions are forbidden to engage in, has a direct tendency to frustrate the purpose of Congress to leave people free to make charges of unfair labor practices to the Board. . . . It appears obvious to us that this financial burden which Florida imposes will impede resort to the Act and thwart congressional reliance on individual action. A national system for the implementation of this country's labor policies is not so dependent on state law. Florida should not be permitted to defeat or handicap a valid national objective by threatening to withdraw state benefits from persons simply because they cooperate with the Government's constitutional plan." Id., at 239 (footnote omitted).
As the Court recognizes, ante, at 635, a "financing" disqualification such as Michigan's implicates important rights that are protected by § 7 of the NLRA. In particular, such a disqualification may prevent workers from exercising their right to expend money in support of a strike, and, more generally, it will influence their willingness to contribute to a fund that will strengthen the union's position in collective bargaining. The question we must answer in this case, then, is whether as in New York Telephone Co. there is reason to think that Congress intended to tolerate the conflict between Michigan's "financing" provision and the NLRA, or *641 whether like the state law struck down in Nash this conflict is one that Congress did not intend to permit.
I note at the outset that it is highly unusual to interpret one law by reference to the legislative history of a different law. However, because the NLRA and the Social Security Act were considered by Congress at the same time and were passed within five weeks of one another, it is sometimes appropriate to read them in pari materia. See New York Telephone Co., supra, at 540-541; ante, at 632-633. Nonetheless, the NLRA and the Social Security Act are distinct pieces of legislation that address very different concerns. Consequently, we cannot find that Congress intended to withdraw protections extended in the NLRA on the basis of the legislative history of the Social Security Act unless the expression of Congress' intent to do so is especially clear. In this case, the available evidence is anything but clear in support of the conclusion that Congress intended to permit States to deny unemployment benefits to individuals for "financing" a labor dispute in the manner approved by the Michigan Supreme Court. Unlike the discussion in the legislative history concerning unemployment benefits for actual strikers that was relied upon in New York Telephone Co., supra, at 542-544, there is no comparable discussion at any point in the legislative history of benefits for individuals who "finance" a labor dispute. Nor does the Report of the Committee on Economic Security, which " `became the cornerstone of the Social Security Act,' " ante, at 633 (quoting Ohio Bureau of Employment Services v. Hodory, supra, at 482), mention the subject of a "financing" disqualification. The sole support for the use of a financing disqualification is in "draft bills" prepared by the Social Security Board one year after the Social Security Act was passed as examples of what the Act permitted the States to do. These draft bills disqualified workers from receiving benefits if their unemployment was due to a labor dispute which they were "participating in or financing or directly interested in . . . ." United States *642 Social Security Board, Draft Bills For State Unemployment Compensation of Pooled Fund and Employer Reserve Account Types §§ 5(d)(1) and (2), pp. 9, 10 (1936).
One could argue that, in light of this scant legislative history, there is no basis for concluding that Congress intended to authorize the States to utilize any kind of "financing" disqualification that interferes with rights protected by the NLRA. However, because the draft bills constitute a contemporaneous construction of an Act by those charged with the responsibility for setting it in motion, they are entitled to considerable deference. See Udall v. Tallman, 380 U.S. 1, 16 (1965) (quoting Power Reactor Development Co. v. Electrical Workers, 367 U.S. 396, 408 (1961). We may therefore conclude that the States may enact some sort of "financing" disqualification even though this might conflict with the NLRA. The difficult question is what kind.
Unfortunately, the Social Security Board did not elaborate on its understanding of the permissible scope of its financing disqualification, so there is nothing in the draft bills from which to determine how broad the disqualification may be, consistent with the NLRA. It is at least clear, however, that the Social Security Board thought that there were limits on the scope of any financing disqualification. For within just a few years, the Board deleted this disqualification from its draft bills, explaining:
"The provision found in some laws extending the disqualification to individuals who are financing a labor dispute is not recommended since it might operate to disqualify an individual not concerned with the dispute solely on the basis of his payment of dues to the union that is conducting the strike." United States Social Security Board, Bureau of Employment Security, Proposed State Legislation Providing for Unemployment Compensation and Public Employment Offices, Employment Security Memorandum No. 13, p. 56, note (Nov. 1940).
*643 Insofar as the legislative history of the Social Security Act supports only the conclusion that Congress intended to leave the States authority to deny benefits to actual strikers, and does not indicate that Congress anticipated a distinct disqualification of individuals whose money is used to pay for a strike, such a disqualification can only be permitted to the extent that it is necessary to effectuate the State's decision to disqualify actual strikers. Thus, a financing disqualification may be justified as necessary to prevent unions from circumventing the State's disqualification of actual strikers, something unions might accomplish by striking a key group of employees knowing that the resultant work stoppage will cause additional layoffs and that laid-off workers will be supported by unemployment benefits while sharing the cost of financing the strike among all the workers.
Where this is true, i. e., where workers agree to pay special dues[1] to finance a particular labor dispute that they *644 know will result in their own layoffs, they voluntarily cause their own unemployment in the same sense as actual strikers. Therefore, I agree with the Court that "[t]o the extent that appellants may be viewed as participants in the decision to strike, or to expend funds in support of the local strikes, it is difficult to see how such a decision would be entitled to any greater protection than is afforded to actual strikers." Ante, at 636-637. I also agree with the Court that, insofar as "the emergency dues decision was tantamount to a plantwide decision to call a strike in a bottleneck department that would predictably shut down an entire plant," ante, at 637, Michigan could disqualify workers who paid the dues. In other words, to the extent that Michigan denies benefits to workers who agree to pay special dues to finance the very strike *645 that caused their unemployment. I agree that the Michigan statute is not pre-empted.
As interpreted by the Michigan Supreme Court, however, the Michigan statute also denies benefits to individuals whose unemployment results from a labor dispute financed with money raised for a different labor dispute so long as the dispute that caused the unemployment was "foreseeable" at the time the contribution was made. Michigan's law thus denies benefits to an individual for "financing" a labor dispute even though he did not necessarily intend to finance that dispute. Yet, where this is the case, the disqualification cannot be justified as necessary to effectuate the disqualification of actual strikers. Therefore, to the extent that it interferes with rights protected by the NLRA, it is pre-empted. Moreover, in my view, an individual who did not intend to finance the labor dispute that led to his being laid off cannot be said to have "voluntarily" caused his own unemployment in the same sense as a striker; the Court's unexplained equation of the two is simply wrong.
Finally, denying benefits to an individual who paid special dues merely because the strike that caused his unemployment was foreseeable when the decision to pay the dues was made interferes with rights protected by the NLRA in a much more pervasive manner than a disqualification of actual strikers. Consider the decision that must be made by a union member asked to vote on whether to collect special dues to finance an anticipated strike. If he agrees to pay the special dues and the strike results in his being laid off, he will not receive unemployment benefits under state law. This possibility will certainly influence his decision whether or not to vote in favor of the special dues, and, to that extent, the state law conflicts with a federally protected right. However, as explained above, because the union member's decision in this regard is essentially identical to the decision of an actual striker, I agree with the Court that it is reasonable to conclude that Congress was willing to tolerate this conflict. *646 But under Michigan's statute, the union member must think about other "foreseeable" strikes in addition to the particular strike under consideration. Thus, it may be that the strike under consideration will not cause layoffs among nonstrikers, or that the union member feels strongly enough about that dispute that he is willing to tolerate the loss of unemployment compensation if he is laid off. But under the Michigan statute, the union member's decision whether to vote to authorize the collection of special dues is coerced still further by the possibility that some other strike, that might be financed by these dollars and that might result in layoffs, will leave him without unemployment compensation.[2] I do not see that there is any justification for this additional interference with rights protected by the NLRA; certainly the Court has offered none. It would be one thing if the legislative history showed that Congress intended to tolerate a conflict with the NLRA such as is created by Michigan's financing provision. But it does not. Therefore, I would hold that States may disqualify unemployed individuals for "financing" a labor dispute only where they agree to pay special dues specifically to finance the particular strike that caused their unemployment. To the extent that the Michigan statute exceeds this limitation, it is pre-empted by the NLRA.
Because of its construction of the Michigan statute, the Michigan Supreme Court did not find it necessary to consider whether the local foundry strikes were expressly contemplated by the UAW in its decision to collect the emergency dues. Accordingly, I would vacate the judgment below and remand the case to the Michigan Supreme Court to consider this question.
| The State of Michigan disqualifies an individual from receiving unemployment benefits for "financing" the labor dispute that causes his unemployment. (8)(a)(ii) (Supp. 1986). As construed by the Michigan *639 Supreme Court, this means that an unemployed individual is denied benefits for making a significant financial contribution to a labor organization "in temporal proximity" to the labor dispute that caused his unemployment if that contribution was "for the purpose of assisting labor disputes which reasonably and foreseeably include the dispute that caused the [individual's] unemployment." Because I believe that, as so construed, this statute conflicts with the National Labor Relations Act (NLRA) in a way that Congress did not intend to permit, I respectfully dissent from the Court's opinion and judgment. In enacting Title IX of the Social Security Act, Congress left the States a "wide range" of discretion to establish qualifications for receiving unemployment benefits. Steward Machine ; see also Ohio Bureau of Employment We have previously found evidence in the legislative history of the Social Security Act indicating that Congress intended that this broad grant of authority should include power to authorize or deny unemployment benefits in ways that may interfere with the smooth operation of the federal labor laws. Thus, in New York Telephone we held that the States were free to authorize or to prohibit payment of unemployment benefits to striking workers notwithstanding the impact of such payments on the collective-bargaining process. We based our conclusion on evidence in the legislative history of the Social Security Act specifically indicating that Congress intended to leave the States such authority. ; see also, ; It is clear, however, that the States' discretion to fashion qualifications for unemployment compensation is not boundless, and that state laws that conflict with the NLRA in ways *640 that Congress did not intend to permit are pre-empted. For example, in petitioner filed an unfair labor practice charge with the National Labor Relations Board alleging that she had been laid off in retaliation for union activities. The Florida Industrial Commission determined that filing charges with the NLRB initiated a "labor dispute" within the meaning of the Florida statute denying benefits to individuals unemployed "due to a labor dispute." We concluded that the effect of such a disqualification on national labor policy was too great: "The action of Florida here, like the coercive actions which employers and unions are forbidden to engage in, has a direct tendency to frustrate the purpose of Congress to leave people free to make charges of unfair labor practices to the Board. It appears obvious to us that this financial burden which Florida imposes will impede resort to the Act and thwart congressional reliance on individual action. A national system for the implementation of this country's labor policies is not so dependent on state law. Florida should not be permitted to defeat or handicap a valid national objective by threatening to withdraw state benefits from persons simply because they cooperate with the Government's constitutional plan." As the Court recognizes, ante, at 635, a "financing" disqualification such as Michigan's implicates important rights that are protected by 7 of the NLRA. In particular, such a disqualification may prevent workers from exercising their right to expend money in support of a strike, and, more generally, it will influence their willingness to contribute to a fund that will strengthen the union's position in collective bargaining. The question we must answer in this case, then, is whether as in New York Telephone there is reason to think that Congress intended to tolerate the conflict between Michigan's "financing" provision and the NLRA, or *641 whether like the state law struck down in Nash this conflict is one that Congress did not intend to permit. I note at the outset that it is highly unusual to interpret one law by reference to the legislative history of a different law. However, because the NLRA and the Social Security Act were considered by Congress at the same time and were passed within five weeks of one another, it is sometimes appropriate to read them in pari materia. See New York Telephone ; ante, at 632-633. Nonetheless, the NLRA and the Social Security Act are distinct pieces of legislation that address very different concerns. Consequently, we cannot find that Congress intended to withdraw protections extended in the NLRA on the basis of the legislative history of the Social Security Act unless the expression of Congress' intent to do so is especially clear. In this case, the available evidence is anything but clear in support of the conclusion that Congress intended to permit States to deny unemployment benefits to individuals for "financing" a labor dispute in the manner approved by the Michigan Supreme Court. Unlike the discussion in the legislative history concerning unemployment benefits for actual strikers that was relied upon in New York Telephone there is no comparable discussion at any point in the legislative history of benefits for individuals who "finance" a labor dispute. Nor does the Report of the Committee on Economic Security, which " `became the cornerstone of the Social Security Act,' " ante, at 633 (quoting Ohio Bureau of Employment ), mention the subject of a "financing" disqualification. The sole support for the use of a financing disqualification is in "draft bills" prepared by the Social Security Board one year after the Social Security Act was passed as examples of what the Act permitted the States to do. These draft bills disqualified workers from receiving benefits if their unemployment was due to a labor dispute which they were "participating in or financing or directly interested in" United States *642 Social Security Board, Draft Bills For State Unemployment Compensation of Pooled Fund and Employer Reserve Account Types 5(d)(1) and (2), pp. 9, 10 (1936). One could argue that, in light of this scant legislative history, there is no basis for concluding that Congress intended to authorize the States to utilize any kind of "financing" disqualification that interferes with rights protected by the NLRA. However, because the draft bills constitute a contemporaneous construction of an Act by those charged with the responsibility for setting it in motion, they are entitled to considerable deference. See We may therefore conclude that the States may enact some sort of "financing" disqualification even though this might conflict with the NLRA. The difficult question is what kind. Unfortunately, the Social Security Board did not elaborate on its understanding of the permissible scope of its financing disqualification, so there is nothing in the draft bills from which to determine how broad the disqualification may be, consistent with the NLRA. It is at least clear, however, that the Social Security Board thought that there were limits on the scope of any financing disqualification. For within just a few years, the Board deleted this disqualification from its draft bills, explaining: "The provision found in some laws extending the disqualification to individuals who are financing a labor dispute is not recommended since it might operate to disqualify an individual not concerned with the dispute solely on the basis of his payment of dues to the union that is conducting the strike." United States Social Security Board, Bureau of Employment Security, Proposed State Legislation Providing for Unemployment Compensation and Public Employment Offices, Employment Security Memorandum No. 13, p. 56, note (Nov. 1940). *643 Insofar as the legislative history of the Social Security Act supports only the conclusion that Congress intended to leave the States authority to deny benefits to actual strikers, and does not indicate that Congress anticipated a distinct disqualification of individuals whose money is used to pay for a strike, such a disqualification can only be permitted to the extent that it is necessary to effectuate the State's decision to disqualify actual strikers. Thus, a financing disqualification may be justified as necessary to prevent unions from circumventing the State's disqualification of actual strikers, something unions might accomplish by striking a key group of employees knowing that the resultant work stoppage will cause additional layoffs and that laid-off workers will be supported by unemployment benefits while sharing the cost of financing the strike among all the workers. Where this is true, i. e., where workers agree to pay special dues[1] to finance a particular labor dispute that they *644 know will result in their own layoffs, they voluntarily cause their own unemployment in the same sense as actual strikers. Therefore, I agree with the Court that "[t]o the extent that appellants may be viewed as participants in the decision to strike, or to expend funds in support of the local strikes, it is difficult to see how such a decision would be entitled to any greater protection than is afforded to actual strikers." Ante, at 636-637. I also agree with the Court that, insofar as "the emergency dues decision was tantamount to a plantwide decision to call a strike in a bottleneck department that would predictably shut down an entire plant," ante, at 637, Michigan could disqualify workers who paid the dues. In other words, to the extent that Michigan denies benefits to workers who agree to pay special dues to finance the very strike *645 that caused their unemployment. I agree that the Michigan statute is not pre-empted. As interpreted by the Michigan Supreme Court, however, the Michigan statute also denies benefits to individuals whose unemployment results from a labor dispute financed with money raised for a different labor dispute so long as the dispute that caused the unemployment was "foreseeable" at the time the contribution was made. Michigan's law thus denies benefits to an individual for "financing" a labor dispute even though he did not necessarily intend to finance that dispute. Yet, where this is the case, the disqualification cannot be justified as necessary to effectuate the disqualification of actual strikers. Therefore, to the extent that it interferes with rights protected by the NLRA, it is pre-empted. Moreover, in my view, an individual who did not intend to finance the labor dispute that led to his being laid off cannot be said to have "voluntarily" caused his own unemployment in the same sense as a striker; the Court's unexplained equation of the two is simply wrong. Finally, denying benefits to an individual who paid special dues merely because the strike that caused his unemployment was foreseeable when the decision to pay the dues was made interferes with rights protected by the NLRA in a much more pervasive manner than a disqualification of actual strikers. Consider the decision that must be made by a union member asked to vote on whether to collect special dues to finance an anticipated strike. If he agrees to pay the special dues and the strike results in his being laid off, he will not receive unemployment benefits under state law. This possibility will certainly influence his decision whether or not to vote in favor of the special dues, and, to that extent, the state law conflicts with a federally protected right. However, as explained above, because the union member's decision in this regard is essentially identical to the decision of an actual striker, I agree with the Court that it is reasonable to conclude that Congress was willing to tolerate this conflict. *646 But under Michigan's statute, the union member must think about other "foreseeable" strikes in addition to the particular strike under consideration. Thus, it may be that the strike under consideration will not cause layoffs among nonstrikers, or that the union member feels strongly enough about that dispute that he is willing to tolerate the loss of unemployment compensation if he is laid off. But under the Michigan statute, the union member's decision whether to vote to authorize the collection of special dues is coerced still further by the possibility that some other strike, that might be financed by these dollars and that might result in layoffs, will leave him without unemployment compensation.[2] I do not see that there is any justification for this additional interference with rights protected by the NLRA; certainly the Court has offered none. It would be one thing if the legislative history showed that Congress intended to tolerate a conflict with the NLRA such as is created by Michigan's financing provision. But it does not. Therefore, I would hold that States may disqualify unemployed individuals for "financing" a labor dispute only where they agree to pay special dues specifically to finance the particular strike that caused their unemployment. To the extent that the Michigan statute exceeds this limitation, it is pre-empted by the NLRA. Because of its construction of the Michigan statute, the Michigan Supreme Court did not find it necessary to consider whether the local foundry strikes were expressly contemplated by the UAW in its decision to collect the emergency dues. Accordingly, I would vacate the judgment below and remand the case to the Michigan Supreme Court to consider this question. |
Justice Stevens | second_dissenting | false | Ridgway v. Ridgway | 1981-11-10T00:00:00 | null | https://www.courtlistener.com/opinion/110578/ridgway-v-ridgway/ | https://www.courtlistener.com/api/rest/v3/clusters/110578/ | 1,981 | 1981-005 | 2 | 5 | 3 | As a matter of state law, the Maine Supreme Judicial Court imposed a constructive trust on the proceeds of Sergeant Ridgway's life insurance. The trust effectuates a settlement agreement and an express judicial decree that commanded Ridgway to maintain the policy in effect for the benefit of his minor children.[1] The propriety of the imposition *72 of a constructive trust under Maine law is, of course, not a matter for us to review.[2] Unless the application of this well-established equitable doctrine does "major damage" to "clear and substantial federal interests,"[3] we must respect it.
Notwithstanding the absence of any such major damage, the Court today decides that the Maine court's decision conflicts with two provisions of the Servicemen's Group Life Insurance Act (SGLIA), 38 U.S. C. §§ 765-776.[4] The Court finds a conflict with § 770(a) of the statute, which gives the serviceman the right to designate his beneficiary, and with § 770(g), which exempts the insurance proceeds from taxation and from seizure by legal or equitable process. Because the Court in Wissner v. Wissner, 338 U.S. 655, relied on similar provisions of the National Service Life Insurance Act of 1940, 54 Stat. 1008, in rejecting a claim to insurance proceeds paid under that statute, the Court today concludes that Wissner is controlling and that it must reach a similar result.
Unquestionably, there is a strong federal interest in protecting federally supported benefits from claims of the recipient's commercial creditors.[5] There is also a federal interest, much less clearly defined, in permitting a federal serviceman *73 to designate the beneficiary of his insurance policy. Both of these federal interests supported the rejection of the estranged wife's claim in Wissner. A careful examination of this case, however, demonstrates that neither of these interests is compromised by the decision of the Maine Supreme Judicial Court.
I
Since the alleged conflict with the exemption provision is more obvious in this case, and concerns a more substantial federal interest, I address it first. The statute provides:
"Payments of benefits due or to become due under Servicemen's Group Life Insurance or Veterans' Group Life Insurance made to, or on account of, a beneficiary shall be exempt from taxation, shall be exempt from the claims of creditors, and shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary." 38 U.S. C. § 770(g).
This provision prohibits a commercial creditor from securing insurance proceeds in the hands of the beneficiary, regardless *74 of any contrary agreement made by the insured or any terms of state law. Although the majority concludes that this provision also prohibits the state court from recognizing respondents' claim in this case, ante, at 60, it is most unlikely that Congress intended § 770(g) to operate as a bar to claims advanced by an insured's dependents for support.
The language used in the "anti-attachment" provision of the SGLIA is comparable to that found in so-called "spendthrift clauses" that have protected trust beneficiaries from the claims of commercial creditors for centuries.[6] As stated by Dean Griswold, "[i]t is widely held, however, that even where such trusts are generally valid, the interest of the beneficiary may be reached for the support of his wife or children, or for the payment of alimony to his wife." E. Griswold, Spendthrift Trusts 389 (2d ed. 1947).[7] Prior to the decision of this Court in Wissner, a number of courts had held that statutory "spendthrift" provisions did not bar a claim for alimony or support.[8] Many of these cases in fact *75 concerned exemption provisions applicable to veterans' benefits programs. As summarized in one treatise:
"And claims for the support and care of minor children of an incompetent veteran have been held not to be subject to the exemption, as the obligation of a father to support his minor children is not a debt within the meaning of the statute, but is an obligation growing out of the parental status and public policy." R. Kimbrough & J. Glen, American Law of Veterans 32 (2d ed. 1954).[9]
A thoughtful and expansive opinion of Justice Rutledge, then a member of the United States Court of Appeals for the District of Columbia, best explains the rationale of these decisions. In Schlaefer v. Schlaefer, 71 Ohio App. D. C. 350, 112 F.2d 177 (1940), the court considered a claim for arrears in alimony payments. Plaintiff sought sequestration of her former husband's property, including $100 per month that he received as disability benefit payments under the Life Insurance Act for the District of Columbia. Defendant responded that these payments were exempted specifically from process under the express language of § 16(a) of that federal statute.[10]
*76 The court in Schlaefer stated that "[t]he basic issue boils down to whether Congress intended to relieve the disabled insured to the extent of his disability payments from legally enforceable obligation to support his family and those legally dependent upon him." Id., at 358, 112 F.2d, at 185. The court recognized:
"So far as general creditors are concerned the purpose is clear, with the exceptions stated, to make the disposition of these funds a matter solely for his judgment. Congress regarded it as better for the creditors to go unpaid than to deprive the debtor and his dependents of this means of support when earning capacity would be cut off. Hence it used broad language prohibiting recourse to the fund by legal process." Ibid.
The court determined, however, that the insured's legal dependents were not to be classified, for purposes of the statute, "with strangers holding claims hostile to his interest." Ibid. The court noted that "the usual purpose of exemptions is to relieve the person exempted from the pressure of claims hostile to his dependents' essential needs as well as his own personal ones, not to relieve him of familial obligations and destroy what may be the family's last and only security, short of public relief." Ibid.
The court concluded that this construction was "not inconsistent with giving full effect to the statute." Id., at 359, 112 F.2d, at 186. As explained by the court:
"The protection remaining is broad, applying both to `debts' and to `liabilities.' Furthermore, it renders the *77 statute consistent with others which provide methods for enforcement of the husband's and the father's duty of support. Any other would nullify them in circumstances where the disability payments constitute the sole source of livelihood, though they might be adequate to support the insured and all his dependents in luxury. We cannot believe that Congress intended to create an exemption so broad and so inconsistent with the policy which it has declared in other acts." Ibid. (footnote omitted).
The court further noted that its construction of the exemption statute was consistent with other authorities, which had held that a claim for support was not a "debt" or a "liability" in the ordinary usages of those terms.[11]
In Wissner, the Court did not repudiate this distinction between family and business obligations. Rather, in ruling that the exemption statute was applicable in that case, the Court expressly recognized this distinction and placed the estranged wife's community property claim in the business category. As stated by the Court, "we must note that the community property principle rests upon something more than the moral obligation of supporting spouse and children: the business relationship of man and wife for their mutual monetary profit." 338 U.S., at 660.[12] As a result, it simply cannot *78 be said that Wissner commands that an exemption statute such as that present in this case stands as a bar to claims based on familial obligations.
Although Wissner left open the question presented in this case, there is nothing in the language of the SGLIA or its legislative history that evidences an intent by Congress to repudiate this distinction between commercial and family obligations.[13] The federal interest incorporated within exemption statutes is an interest in preventing federally supported benefits from satisfying claims of commercial creditors. *79 Although such claims are certainly valid, they arise solely from a personal obligation of the debtor, and should not be borne by the public through payment from general revenues. Claims based on familial obligation, however, are of a different character, and indeed may be precisely the type of claim for which the federal benefit was intended.[14] Absent some indication that Congress intended the standard exemption provision contained in the SGLIA to bar a minor child's claim for support, I am unwilling to conclude that this provision of the statute pre-empts the application of state law in this case.
II
When the exemption provision is put to one side, the only support for the Court's pre-emption holding is the statutory provision giving the serviceman the right to designate the beneficiary of his insurance policy.[15] In order to determine whether the decision of the Maine court has done "major damage" to the federal interests underlying this statutory provision, it is first appropriate to identify those federal interests precisely.
The right to designate the beneficiary of an insurance policy is a common feature in insurance contracts. It surely is not a right that can be characterized as uniquely federal in any sense. Moreover, the mere fact that the right has its *80 source in a federal statute does not require that it be given a construction different from that given a comparable right created by state law or by private contract. As stated by this Court in Hisquierdo v. Hisquierdo, 439 U.S. 572, 583, "[t]he federal nature of the benefits does not by itself proscribe the entire field of state control."
To be sure, the Court in Wissner speculated that "[p]ossession of government insurance, payable to the relative of his choice, might well directly enhance the morale of the serviceman." 338 U.S., at 660. This interest in permitting a serviceman to designate the beneficiary of his insurance policy is not compromised in this case, however. It cannot be said that state law forces a distribution of the insurance proceeds that is inconsistent with the federal policy of permitting Sergeant Ridgway to choose his beneficiary. In a freely negotiated child custody and support settlement, Ridgway agreed to maintain his former wife as the beneficiary of the policy for the benefit of his minor children. Ridgway himself made that choice; the question presented in this case, therefore, is whether any provision of the statute espouses a federal interest in permitting him to change his beneficiary in derogation of an accepted obligation to provide support for his children. I can find no section of the statute that expresses such an interest. The result reached by the Court today surely cannot be justified by the need to maintain the "morale" of our Armed Forces.
The history of the statutory provision defining the serviceman's right to designate his beneficiary supports the conclusion that § 770(a) does not pre-empt state law in this case. Originally, servicemen could name as beneficiaries only those persons who fell within a limited, defined class.[16] At the *81 time Wissner was decided, servicemen could designate only a spouse, child, grandchild, parent, or sibling as a beneficiary of a National Service Life Insurance policy. The designation provision at issue in Wissner thus added support for the proposition that insurance proceeds were intended to benefit only immediate family members and dependents of the serviceman, and not any other party.
When Congress enacted the SGLIA in 1965, however, it removed all limitations on eligible beneficiaries. 79 Stat. 883. Any person may be named as beneficiary of the policy, including a commercial creditor. Today, the Court gives priority to the claim of any such designated beneficiary. Thus, as a result of its decision, a loan shark, a camp follower, or a total stranger designated as beneficiary would have priority over claims of dependent family members, even though those claims were incorporated in a voluntary settlement agreement and an express judicial decree. This result simply was not possible at the time Wissner was decided. No federal interest justifies such an absolute and unqualified priority for the designated beneficiary.[17]
*82 It is ironic that today's decision may harm federal interests in a more tangible way than that ascribed to the decision of the Maine Supreme Judicial Court. As a result of the holding today, a commitment to keep military insurance in effect for one's children is not legally binding. In the future, a serviceman in divorce negotiations may be forced to purchase new insurance from a private insurer in order to provide fair assurance that his support obligation will remain satisfied in the event of his death. For many servicemen, such private insurance may not be easy to obtain. Surely there is no federal interest in depreciating the value of this insurance.
I respectfully dissent.
| As a matter of state law, the Maine Supreme Judicial Court imposed a constructive trust on the proceeds of Sergeant Ridgway's life insurance. The trust effectuates a settlement agreement and an express judicial decree that commanded Ridgway to maintain the policy in effect for the benefit of his minor children.[1] The propriety of the imposition *72 of a constructive trust under Maine law is, of course, not a matter for us to review.[2] Unless the application of this well-established equitable doctrine does "major damage" to "clear and substantial federal interests,"[3] we must respect it. Notwithstanding the absence of any such major damage, the Court today decides that the Maine court's decision conflicts with two provisions of the Servicemen's Group Life Insurance Act (SGLIA), 38 U.S. C. 765-776.[4] The Court finds a conflict with 770(a) of the statute, which gives the serviceman the right to designate his beneficiary, and with 770(g), which exempts the insurance proceeds from taxation and from seizure by legal or equitable process. Because the Court in relied on similar provisions of the National Service Life Insurance Act of in rejecting a claim to insurance proceeds paid under that statute, the Court today concludes that Wissner is controlling and that it must reach a similar result. Unquestionably, there is a strong federal interest in protecting federally supported benefits from claims of the recipient's commercial creditors.[5] There is also a federal interest, much less clearly defined, in permitting a federal serviceman *73 to designate the beneficiary of his insurance policy. Both of these federal interests supported the rejection of the estranged wife's claim in Wissner. A careful examination of this case, however, demonstrates that neither of these interests is compromised by the decision of the Maine Supreme Judicial Court. I Since the alleged conflict with the exemption provision is more obvious in this case, and concerns a more substantial federal interest, I address it first. The statute provides: "Payments of benefits due or to become due under Servicemen's Group Life Insurance or Veterans' Group Life Insurance made to, or on account of, a beneficiary shall be exempt from taxation, shall be exempt from the claims of creditors, and shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary." 38 U.S. C. 770(g). This provision prohibits a commercial creditor from securing insurance proceeds in the hands of the beneficiary, regardless *74 of any contrary agreement made by the insured or any terms of state law. Although the majority concludes that this provision also prohibits the state court from recognizing respondents' claim in this case, ante, at 60, it is most unlikely that Congress intended 770(g) to operate as a bar to claims advanced by an insured's dependents for support. The language used in the "anti-attachment" provision of the SGLIA is comparable to that found in so-called "spendthrift clauses" that have protected trust beneficiaries from the claims of commercial creditors for centuries.[6] As stated by Dean Griswold, "[i]t is widely held, however, that even where such trusts are generally valid, the interest of the beneficiary may be reached for the support of his wife or children, or for the payment of alimony to his wife." E. Griswold, Spendthrift Trusts 389 (2d ed. 1947).[7] Prior to the decision of this Court in Wissner, a number of courts had held that statutory "spendthrift" provisions did not bar a claim for alimony or support.[8] Many of these cases in fact *75 concerned exemption provisions applicable to veterans' benefits programs. As summarized in one treatise: "And claims for the support and care of minor children of an incompetent veteran have been held not to be subject to the exemption, as the obligation of a father to support his minor children is not a debt within the meaning of the statute, but is an obligation growing out of the parental status and public policy." R. Kimbrough & J. Glen, American Law of Veterans 32 (2d ed. 1954).[9] A thoughtful and expansive opinion of Justice Rutledge, then a member of the United States Court of Appeals for the District of Columbia, best explains the rationale of these decisions. In the court considered a claim for arrears in alimony payments. Plaintiff sought sequestration of her former husband's property, including $100 per month that he received as disability benefit payments under the Life Insurance Act for the District of Columbia. Defendant responded that these payments were exempted specifically from process under the express language of 16(a) of that federal statute.[10] *76 The court in Schlaefer stated that "[t]he basic issue boils down to whether Congress intended to relieve the disabled insured to the extent of his disability payments from legally enforceable obligation to support his family and those legally dependent upon him." The court recognized: "So far as general creditors are concerned the purpose is clear, with the exceptions stated, to make the disposition of these funds a matter solely for his judgment. Congress regarded it as better for the creditors to go unpaid than to deprive the debtor and his dependents of this means of support when earning capacity would be cut off. Hence it used broad language prohibiting recourse to the fund by legal process." The court determined, however, that the insured's legal dependents were not to be classified, for purposes of the statute, "with strangers holding claims hostile to his interest." The court noted that "the usual purpose of exemptions is to relieve the person exempted from the pressure of claims hostile to his dependents' essential needs as well as his own personal ones, not to relieve him of familial obligations and destroy what may be the family's last and only security, short of public relief." The court concluded that this construction was "not inconsistent with giving full effect to the statute." As explained by the court: "The protection remaining is broad, applying both to `debts' and to `liabilities.' Furthermore, it renders the *77 statute consistent with others which provide methods for enforcement of the husband's and the father's duty of support. Any other would nullify them in circumstances where the disability payments constitute the sole source of livelihood, though they might be adequate to support the insured and all his dependents in luxury. We cannot believe that Congress intended to create an exemption so broad and so inconsistent with the policy which it has declared in other acts." The court further noted that its construction of the exemption statute was consistent with other authorities, which had held that a claim for support was not a "debt" or a "liability" in the ordinary usages of those terms.[11] In Wissner, the Court did not repudiate this distinction between family and business obligations. Rather, in ruling that the exemption statute was applicable in that case, the Court expressly recognized this distinction and placed the estranged wife's community property claim in the business category. As stated by the Court, "we must note that the community property principle rests upon something more than the moral obligation of supporting spouse and children: the business relationship of man and wife for their mutual monetary profit."[12] As a result, it simply cannot *78 be said that Wissner commands that an exemption statute such as that present in this case stands as a bar to claims based on familial obligations. Although Wissner left open the question presented in this case, there is nothing in the language of the SGLIA or its legislative history that evidences an intent by Congress to repudiate this distinction between commercial and family obligations.[13] The federal interest incorporated within exemption statutes is an interest in preventing federally supported benefits from satisfying claims of commercial creditors. *79 Although such claims are certainly valid, they arise solely from a personal obligation of the debtor, and should not be borne by the public through payment from general revenues. Claims based on familial obligation, however, are of a different character, and indeed may be precisely the type of claim for which the federal benefit was intended.[14] Absent some indication that Congress intended the standard exemption provision contained in the SGLIA to bar a minor child's claim for support, I am unwilling to conclude that this provision of the statute pre-empts the application of state law in this case. II When the exemption provision is put to one side, the only support for the Court's pre-emption holding is the statutory provision giving the serviceman the right to designate the beneficiary of his insurance policy.[15] In order to determine whether the decision of the Maine court has done "major damage" to the federal interests underlying this statutory provision, it is first appropriate to identify those federal interests precisely. The right to designate the beneficiary of an insurance policy is a common feature in insurance contracts. It surely is not a right that can be characterized as uniquely federal in any sense. Moreover, the mere fact that the right has its *80 source in a federal statute does not require that it be given a construction different from that given a comparable right created by state law or by private contract. As stated by this Court in "[t]he federal nature of the benefits does not by itself proscribe the entire field of state control." To be sure, the Court in Wissner speculated that "[p]ossession of government insurance, payable to the relative of his choice, might well directly enhance the morale of the serviceman." This interest in permitting a serviceman to designate the beneficiary of his insurance policy is not compromised in this case, however. It cannot be said that state law forces a distribution of the insurance proceeds that is inconsistent with the federal policy of permitting Sergeant Ridgway to choose his beneficiary. In a freely negotiated child custody and support settlement, Ridgway agreed to maintain his former wife as the beneficiary of the policy for the benefit of his minor children. Ridgway himself made that choice; the question presented in this case, therefore, is whether any provision of the statute espouses a federal interest in permitting him to change his beneficiary in derogation of an accepted obligation to provide support for his children. I can find no section of the statute that expresses such an interest. The result reached by the Court today surely cannot be justified by the need to maintain the "morale" of our Armed Forces. The history of the statutory provision defining the serviceman's right to designate his beneficiary supports the conclusion that 770(a) does not pre-empt state law in this case. Originally, servicemen could name as beneficiaries only those persons who fell within a limited, defined class.[16] At the *81 time Wissner was decided, servicemen could designate only a spouse, child, grandchild, parent, or sibling as a beneficiary of a National Service Life Insurance policy. The designation provision at issue in Wissner thus added support for the proposition that insurance proceeds were intended to benefit only immediate family members and dependents of the serviceman, and not any other party. When Congress enacted the SGLIA in 1965, however, it removed all limitations on eligible beneficiaries. Any person may be named as beneficiary of the policy, including a commercial creditor. Today, the Court gives priority to the claim of any such designated beneficiary. Thus, as a result of its decision, a loan shark, a camp follower, or a total stranger designated as beneficiary would have priority over claims of dependent family members, even though those claims were incorporated in a voluntary settlement agreement and an express judicial decree. This result simply was not possible at the time Wissner was decided. No federal interest justifies such an absolute and unqualified priority for the designated beneficiary.[17] *82 It is ironic that today's decision may harm federal interests in a more tangible way than that ascribed to the decision of the Maine Supreme Judicial Court. As a result of the holding today, a commitment to keep military insurance in effect for one's children is not legally binding. In the future, a serviceman in divorce negotiations may be forced to purchase new insurance from a private insurer in order to provide fair assurance that his support obligation will remain satisfied in the event of his death. For many servicemen, such private insurance may not be easy to obtain. Surely there is no federal interest in depreciating the value of this insurance. I respectfully dissent. |
Justice Scalia | dissenting | false | Rutan v. Republican Party of Ill. | 1990-08-30T00:00:00 | null | https://www.courtlistener.com/opinion/112472/rutan-v-republican-party-of-ill/ | https://www.courtlistener.com/api/rest/v3/clusters/112472/ | 1,990 | 1989-120 | 2 | 5 | 4 | Today the Court establishes the constitutional principle that party membership is not a permissible factor in the dispensation of government jobs, except those jobs for the performance of which party affiliation is an "appropriate requirement." Ante, at 64. It is hard to say precisely (or even generally) what that exception means, but if there is any category of jobs for whose performance party affiliation is not an appropriate requirement, it is the job of being a judge, where *93 partisanship is not only unneeded but positively undesirable. It is, however, rare that a federal administration of one party will appoint a judge from another party. And it has always been rare. See Marbury v. Madison, 1 Cranch 137 (1803). Thus, the new principle that the Court today announces will be enforced by a corps of judges (the Members of this Court included) who overwhelmingly owe their office to its violation. Something must be wrong here, and I suggest it is the Court.
The merit principle for government employment is probably the most favored in modern America, having been widely adopted by civil service legislation at both the state and federal levels. But there is another point of view, described in characteristically Jacksonian fashion by an eminent practitioner of the patronage system, George Washington Plunkitt of Tammany Hall:
"I ain't up on sillygisms, but I can give you some arguments that nobody can answer.
"First, this great and glorious country was built up by political parties; second, parties can't hold together if their workers don't get offices when they win; third, if the parties go to pieces, the government they built up must go to pieces, too; fourth, then there'll be hell to pay." W. Riordon, Plunkitt of Tammany Hall 13 (1963).
It may well be that the Good Government Leagues of America were right, and that Plunkitt, James Michael Curley, and their ilk were wrong; but that is not entirely certain. As the merit principle has been extended and its effects increasingly felt; as the Boss Tweeds, the Tammany Halls, the Pendergast Machines, the Byrd Machines, and the Daley Machines have faded into history; we find that political leaders at all levels increasingly complain of the helplessness of elected government, unprotected by "party discipline," before the demands of small and cohesive interest groups.
*94 The choice between patronage and the merit principleor, to be more realistic about it, the choice between the desirable mix of merit and patronage principles in widely varying federal, state, and local political contextsis not so clear that I would be prepared, as an original matter, to chisel a single, inflexible prescription into the Constitution. Fourteen years ago, in Elrod v. Burns, 427 U.S. 347 (1976), the Court did that. Elrod was limited however, as was the later decision of Branti v. Finkel, 445 U.S. 507 (1980), to patronage firings, leaving it to state and federal legislatures to determine when and where political affiliation could be taken into account in hirings and promotions. Today the Court makes its constitutional civil service reform absolute, extending to all decisions regarding government employment. Because the First Amendment has never been thought to require this disposition, which may well have disastrous consequences for our political system, I dissent.
I
The restrictions that the Constitution places upon the government in its capacity as lawmaker, i. e., as the regulator of private conduct, are not the same as the restrictions that it places upon the government in its capacity as employer. We have recognized this in many contexts, with respect to many different constitutional guarantees. Private citizens perhaps cannot be prevented from wearing long hair, but policemen can. Kelley v. Johnson, 425 U.S. 238, 247 (1976). Private citizens cannot have their property searched without probable cause, but in many circumstances government employees can. O'Connor v. Ortega, 480 U.S. 709, 723 (1987) (plurality opinion); id., at 732 (SCALIA, J., concurring in judgment). Private citizens cannot be punished for refusing to provide the government information that may incriminate them, but government employees can be dismissed when the incriminating information that they refuse to provide relates to the performance of their jobs. Gardner v. Broderick, 392 *95 U. S. 273, 277-278 (1968). With regard to freedom of speech in particular: Private citizens cannot be punished for speech of merely private concern, but government employees can be fired for that reason. Connick v. Myers, 461 U.S. 138, 147 (1983). Private citizens cannot be punished for partisan political activity, but federal and state employees can be dismissed and otherwise punished for that reason. Public Workers v. Mitchell, 330 U.S. 75, 101 (1947); Civil Service Comm'n v. Letter Carriers, 413 U.S. 548, 556 (1973); Broadrick v. Oklahoma, 413 U.S. 601, 616-617 (1973).
Once it is acknowledged that the Constitution's prohibition against laws "abridging the freedom of speech" does not apply to laws enacted in the government's capacity as employer in the same way that it does to laws enacted in the government's capacity as regulator of private conduct, it may sometimes be difficult to assess what employment practices are permissible and what are not. That seems to me not a difficult question, however, in the present context. The provisions of the Bill of Rights were designed to restrain transient majorities from impairing long-recognized personal liberties. They did not create by implication novel individual rights overturning accepted political norms. Thus, when 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.[1] Such a venerable and accepted tradition is not to *96 be laid on the examining table and scrutinized for its conformity to some abstract principle of First Amendment 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. They are, in these uncertain areas, the very points of reference by which the legitimacy or illegitimacy of other practices is to be figured out. When it appears that the latest "rule," or "three-part test," or "balancing test" devised by the Court has placed us on a collision course with such a landmark practice, it is the former that must be recalculated by us, and not the latter that must be abandoned by our citizens. I know of no other way to formulate a constitutional jurisprudence that reflects, as it should, the principles adhered to, over time, by the American people, rather than those favored by the personal (and necessarily shifting) philosophical dispositions of a majority of this Court.
I will not describe at length the claim of patronage to landmark status as one of our accepted political traditions. Justice Powell discussed it in his dissenting opinions in Elrod and Branti. Elrod, supra, at 378-379; Branti, supra, at 522, n. 1. Suffice it to say that patronage was, without any thought that it could be unconstitutional, a basis for government employment from the earliest days of the Republic until Elrodand has continued unabated since Elrod, to the extent still permitted by that unfortunate decision. See, e. g., D. Price, Bringing Back the Parties 24, 32 (1984); Gardner, A Theory of the Spoils System, 54 Public Choice 171, 181 (1987); Toinet & Glenn, Clientelism and Corruption in the "Open" Society: The Case of the United States, in Private Patronage and Public Power 193, 202 (C. Clapham ed. *97 1982). Given that unbroken tradition regarding the application of an ambiguous constitutional text, there was in my view no basis for holding that patronage-based dismissals violated the First Amendmentmuch less for holding, as the Court does today, that even patronage hiring does so.[2]
II
Even accepting the Court's own mode of analysis, however, and engaging in "balancing" a tradition that ought to be part of the scales, Elrod, Branti, and today's extension of them seem to me wrong.
A
The Court limits patronage on the ground that the individual's interest in uncoerced belief and expression outweighs the systemic interests invoked to justify the practice. Ante, *98 at 68-72. The opinion indicates that the government may prevail only if it proves that the practice is "narrowly tailored to further vital government interests." Ante, at 74.
That strict-scrutiny standard finds no support in our cases. Although our decisions establish that government employees do not lose all constitutional rights, we have consistently applied a lower level of scrutiny when "the governmental function operating ... [is] not the power to regulate or license, as lawmaker, an entire trade or profession, or to control an entire branch of private business, but, rather, as proprietor, to manage [its] internal operatio[ns] . . . ." Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886, 896 (1961). When dealing with its own employees, the government may not act in a manner that is "patently arbitrary or discriminatory," id., at 898, but its regulations are valid if they bear a "rational connection" to the governmental end sought to be served, Kelley v. Johnson, 425 U. S., at 247.
In particular, restrictions on speech by public employees are not judged by the test applicable to similar restrictions on speech by nonemployees. We have said that "[a] governmental employer may subject its employees to such special restrictions on free expression as are reasonably necessary to promote effective government." Brown v. Glines, 444 U.S. 348, 356, n. 13 (1980). In Public Workers v. Mitchell, 330 U. S., at 101, upholding provisions of the Hatch Act which prohibit political activities by federal employees, we said that "it is not necessary that the act regulated be anything more than an act reasonably deemed by Congress to interfere with the efficiency of the public service." We reaffirmed Mitchell in Civil Service Comm'n v. Letter Carriers, 413 U. S., at 556, over a dissent by Justice Douglas arguing against application of a special standard to Government employees, except insofar as their "job performance" is concerned, id., at 597. We did not say that the Hatch Act was narrowly tailored to meet *99 the government's interest, but merely deferred to the judgment of Congress, which we were not "in any position to dispute." Id., at 567. Indeed, we recognized that the Act was not indispensably necessary to achieve those ends, since we repeatedly noted that "Congress at some time [may] come to a different view." Ibid.; see also id., at 555, 564. In Broadrick v. Oklahoma, 413 U.S. 601 (1973), we upheld similar restrictions on state employees, though directed "at political expression which if engaged in by private persons would plainly be protected by the First and Fourteenth Amendments," id., at 616.
To the same effect are cases that specifically concern adverse employment action taken against public employees because of their speech. In Pickering v. Board of Education of Township High School Dist., 391 U.S. 563, 568 (1968), we recognized:
"[T]he State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees."
Because the restriction on speech is more attenuated when the government conditions employment than when it imposes criminal penalties, and because "government offices could not function if every employment decision became a constitutional matter," Connick v. Myers, 461 U. S., at 143, we have held that government employment decisions taken on the basis of an employee's speech do not "abridg[e] the freedom of speech," U. S. Const., Amdt. 1, merely because they fail *100 the narrow-tailoring and compelling-interest tests applicable to direct regulation of speech. We have not subjected such decisions to strict scrutiny, but have accorded "a wide degree of deference to the employer's judgment" that an employee's speech will interfere with close working relationships. 461 U.S., at 152.
When the government takes adverse action against an employee on the basis of his political affiliation (an interest whose constitutional protection is derived from the interest in speech), the same analysis applies. That is why both the Elrod plurality, 427 U.S., at 359, and the opinion concurring in the judgment, id., at 375, as well as Branti, 445 U. S., at 514-515, and the Court today, ante, at 72, rely on Perry v. Sindermann, 408 U.S. 593 (1972), a case that applied the test announced in Pickering, not the strict-scrutiny test applied to restrictions imposed on the public at large. Since the government may dismiss an employee for political speech "reasonably deemed by Congress to interfere with the efficiency of the public service," Public Workers v. Mitchell, supra, at 101, it follows, a fortiori, that the government may dismiss an employee for political affiliation if "reasonably necessary to promote effective government." Brown v. Glines, supra, at 356, n. 13.
While it is clear from the above cases that the normal "strict scrutiny" that we accord to government regulation of speech is not applicable in this field,[3] the precise test that replaces *101 it is not so clear; we have used various formulations. The one that appears in the case dealing with an employment practice closest in its effects to patronage is whether the *102 practice could be "reasonably deemed" by the enacting legislature to further a legitimate goal. Public Workers v. Mitchell, 330 U. S., at 101. For purposes of my ensuing discussion, however, I will apply a less permissive standard that seems more in accord with our general "balancing" test: Can the governmental advantages of this employment practice reasonably be deemed to outweigh its "coercive" effects?
B
Preliminarily, I may observe that the Court today not only declines, in this area replete with constitutional ambiguities, to give the clear and continuing tradition of our people the dispositive effect I think it deserves, but even declines to give it substantial weight in the balancing. That is contrary to what the Court has done in many other contexts. In evaluating *103 so-called "substantive due process" claims we have examined our history and tradition with respect to the asserted right. See, e. g., Michael H. v. Gerald D., 491 U.S. 110 (1989); Bowers v. Hardwick, 478 U.S. 186, 192-194 (1986). In evaluating claims that a particular procedure violates the Due Process Clause we have asked whether the procedure is traditional. See, e. g., Burnham v. Superior Court of California, Marin County, 495 U.S. 604 (1990). And in applying the Fourth Amendment's reasonableness test we have looked to the history of judicial and public acceptance of the type of search in question. See, e. g., Camara v. Municipal Court of San Francisco, 387 U.S. 523, 537 (1967). See also Press-Enterprise Co. v. Superior Court of California, Riverside County, 478 U.S. 1, 8 (1986) (tradition of accessibility to judicial proceedings implies judgment of experience that individual's interest in access outweighs government's interest in closure); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 589 (1980) (BRENNAN, J., concurring in judgment) ("Such a tradition [of public access] commands respect in part because the Constitution carries the gloss of history"); Walz v. Tax Comm'n of New York City, 397 U.S. 664, 678 (1970) ("unbroken practice of according the [property tax] exemption to churches" demonstrates that it does not violate Establishment Clause).
But even laying tradition entirely aside, it seems to me our balancing test is amply met. I assume, as the Court's opinion assumes, that the balancing is to be done on a generalized basis, and not case by case. The Court holds that the governmental benefits of patronage cannot reasonably be thought to outweigh its "coercive" effects (even the lesser "coercive" effects of patronage hiring as opposed to patronage firing) not merely in 1990 in the State of Illinois, but at any time in any of the numerous political subdivisions of this vast country. It seems to me that that categorical pronouncement reflects a naive vision of politics and an inadequate appreciation of the systemic effects of patronage in promoting political stability *104 and facilitating the social and political integration of previously powerless groups.
The whole point of my dissent is that the desirability of patronage is a policy question to be decided by the people's representatives; I do not mean, therefore, to endorse that system. But in order to demonstrate that a legislature could reasonably determine that its benefits outweigh its "coercive" effects, I must describe those benefits as the proponents of patronage see them: As Justice Powell discussed at length in his Elrod dissent, patronage stabilizes political parties and prevents excessive political fragmentationboth of which are results in which States have a strong governmental interest. Party strength requires the efforts of the rank and file, especially in "the dull periods between elections," to perform such tasks as organizing precincts, registering new voters, and providing constituent services. Elrod, 427 U. S., at 385 (dissenting opinion). Even the most enthusiastic supporter of a party's program will shrink before such drudgery, and it is folly to think that ideological conviction alone will motivate sufficient numbers to keep the party going through the off years. "For the most part, as every politician knows, the hope of some reward generates a major portion of the local political activity supporting parties." Ibid. Here is the judgment of one such politician, Jacob Arvey (best known as the promoter of Adlai Stevenson): Patronage is "`a necessary evil if you want a strong organization, because the patronage system permits of discipline, and without discipline, there's no party organization.'" Quoted in M. Tolchin & S. Tolchin, To the Victor 36 (1971). A major study of the patronage system describes the reality as follows:
"[A]lthough men have many motives for entering political life . . . the vast underpinning of both major parties is made up of men who seek practical rewards. Tangible advantages constitute the unifying thread of most successful political practitioners" Id., at 22.
*105 "With so little patronage cement, party discipline is relatively low; the rate of participation and amount of service the party can extract from [Montclair] county committeemen are minuscule compared with Cook County. The party considers itself lucky if 50 percent of its committeemen show up at meetingseven those labeled `urgent'while even lower percentages turn out at functions intended to produce crowds for visiting candidates." Id., at 123.
See also W. Grimshaw, The Political Economy of Machine Politics, 4 Corruption and Reform 15, 30 (1989); G. Pomper, Voters, Elections, and Parties 255 (1988); Wolfinger, Why Political Machines Have Not Withered Away and Other Revisionist Thoughts, 34 J. Politics 365, 384 (1972).
The Court simply refuses to acknowledge the link between patronage and party discipline, and between that and party success. It relies (as did the plurality in Elrod, supra, at 369, n. 23) on a single study of a rural Pennsylvania county by Professor Sorauf, ante, at 75a work that has been described as "more persuasive about the ineffectuality of Democratic leaders in Centre County than about the generalizability of [its] findings." Wolfinger, supra, at 384, n. 39. It is unpersuasive to claim, as the Court does, that party workers are obsolete because campaigns are now conducted through media and other money-intensive means. Ante, at 75. Those techniques have supplemented but not supplanted personal contacts. See Price, Bringing Back the Parties, at 25. Certainly they have not made personal contacts unnecessary in campaigns for the lower level offices that are the foundations of party strength, nor have they replaced the myriad functions performed by party regulars not directly related to campaigning. And to the extent such techniques have replaced older methods of campaigning (partly in response to the limitations the Court has placed on patronage), the political system is not clearly better off. See Elrod, supra, at 384 (Powell, J., dissenting); Branti, 445 *106 U. S., at 528 (Powell, J., dissenting). Increased reliance on money-intensive campaign techniques tends to entrench those in power much more effectively than patronagebut without the attendant benefit of strengthening the party system. A challenger can more easily obtain the support of party workers (who can expect to be rewarded even if the candidate losesif not this year, then the next) than the financial support of political action committees (which will generally support incumbents, who are likely to prevail).
It is self-evident that eliminating patronage will significantly undermine party discipline; and that as party discipline wanes, so will the strength of the two-party system. But, says the Court, "[p]olitical parties have already survived the substantial decline in patronage employment practices in this century." Ante, at 74. This is almost verbatim what was said in Elrod, see 427 U.S., at 369. Fourteen years later it seems much less convincing. Indeed, now that we have witnessed, in 18 of the last 22 years, an Executive Branch of the Federal Government under the control of one party while the Congress is entirely or (for two years) partially within the control of the other party; now that we have undergone the most recent federal election, in which 98% of the incumbents, of whatever party, were returned to office; and now that we have seen elected officials changing their political affiliation with unprecedented readiness, Washington Post, Apr. 10, 1990, p. A1, the statement that "political parties have already survived" has a positively whistling-in-the-graveyard character to it. Parties have assuredly survivedbut as what? As the forges upon which many of the essential compromises of American political life are hammered out? Or merely as convenient vehicles for the conducting of national Presidential elections?
The patronage system does not, of course, merely foster political parties in general; it fosters the two-party system in particular. When getting a job, as opposed to effectuating a particular substantive policy, is an available incentive for *107 party workers, those attracted by that incentive are likely to work for the party that has the best chance of displacing the "ins," rather than for some splinter group that has a more attractive political philosophy but little hope of success. Not only is a two-party system more likely to emerge, but the differences between those parties are more likely to be moderated, as each has a relatively greater interest in appealing to a majority of the electorate and a relatively lesser interest in furthering philosophies or programs that are far from the mainstream. The stabilizing effects of such a system are obvious. See Toinet & Glenn, Clientelism and Corruption in the "Open" Society, at 208. In the context of electoral laws we have approved the States' pursuit of such stability, and their avoidance of the "splintered parties and unrestrained factionalism [that] may do significant damage to the fabric of government." Storer v. Brown, 415 U.S. 724, 736 (1974) (upholding law disqualifying persons from running as independents if affiliated with a party in the past year).
Equally apparent is the relatively destabilizing nature of a system in which candidates cannot rely upon patronage-based party loyalty for their campaign support, but must attract workers and raise funds by appealing to various interest groups. See Tolchin & Tolchin, To the Victor, at 127-130. There is little doubt that our decisions in Elrod and Branti, by contributing to the decline of party strength, have also contributed to the growth of interest-group politics in the last decade. See, e. g., Fitts, The Vice of Virtue, 136 U. Pa. L. Rev. 1567, 1603-1607 (1988). Our decision today will greatly accelerate the trend. It is not only campaigns that are affected, of course, but the subsequent behavior of politicians once they are in power. The replacement of a system firmly in party discipline with one in which each officeholder comes to his own accommodation with competing interest groups produces "a dispersion of political influence that may inhibit a *108 political party from enacting its programs into law." Branti, supra, at 531 (Powell, J., dissenting).[4]
Patronage, moreover, has been a powerful means of achieving the social and political integration of excluded groups. See, e. g., Elrod, 427 U. S., at 379 (Powell, J., dissenting); Cornwell, Bosses, Machines and Ethnic Politics, in Ethnic Group Politics 190, 195-197 (H. Bailey, Jr., & E. Katz eds. 1969). By supporting and ultimately dominating a particular party "machine," racial and ethnic minorities have on the basis of their politics rather than their race or ethnicity acquired the patronage awards the machine had power to confer. No one disputes the historical accuracy of this observation, and there is no reason to think that patronage can no longer serve that function. The abolition of patronage, however, prevents groups that have only recently obtained political power, especially blacks, from following this path to economic and social advancement.
"`Every ethnic group that has achieved political power in American cities has used the bureaucracy to provide jobs in return for political support. It's only when Blacks begin to play the same game that the rules get changed. Now the use of such jobs to build political bases becomes an "evil" activity, and the city insists on taking the control back "downtown."'" New York Amsterdam News, Apr. 1, 1978, p. A-4, quoted in Hamilton, The Patron-Recipient Relationship and Minority Politics in New York City, 94 Pol. Sci. Q. 211, 212 (1979).
While the patronage system has the benefits argued for above, it also has undoubted disadvantages. It facilitates financial corruption, such as salary kickbacks and partisan political activity on government-paid time. It reduces the efficiency *109 of government, because it creates incentives to hire more and less qualified workers and because highly qualified workers are reluctant to accept jobs that may only last until the next election. And, of course, it applies some greater or lesser inducement for individuals to join and work for the party in power.
To hear the Court tell it, this last is the greatest evil. That is not my view, and it has not historically been the view of the American people. Corruption and inefficiency, rather than abridgment of liberty, have been the major criticisms leading to enactment of the civil service lawsfor the very good reason that the patronage system does not have as harsh an effect upon conscience, expression, and association as the Court suggests. As described above, it is the nature of the pragmatic, patronage-based, two-party system to build alliances and to suppress rather than foster ideological tests for participation in the division of political "spoils." What the patronage system ordinarily demands of the party worker is loyalty to, and activity on behalf of, the organization itself rather than a set of political beliefs. He is generally free to urge within the organization the adoption of any political position; but if that position is rejected he must vote and work for the party nonetheless. The diversity of political expression (other than expression of party loyalty) is channeled, in other words, to a different stageto the contests for party endorsement rather than the partisan elections. It is undeniable, of course, that the patronage system entails some constraint upon the expression of views, particularly at the partisan-election stage, and considerable constraint upon the employee's right to associate with the other party. It greatly exaggerates these, however, to describe them as a general "`coercion of belief,'" ante, at 71, quoting Branti, 445 U. S., at 516; see also ante, at 75; Elrod, supra, at 355 (plurality opinion). Indeed, it greatly exaggerates them to call them "coercion" at all, since we generally make a distinction between inducement and compulsion. The public official *110 offered a bribe is not "coerced" to violate the law, and the private citizen offered a patronage job is not "coerced" to work for the party. In sum, I do not deny that the patronage system influences or redirects, perhaps to a substantial degree, individual political expression and political association. But like the many generations of Americans that have preceded us, I do not consider that a significant impairment of free speech or free association.
In emphasizing the advantages and minimizing the disadvantages (or at least minimizing one of the disadvantages) of the patronage system, I do not mean to suggest that that system is best. It may not always be; it may never be. To oppose our Elrod-Branti jurisprudence, one need not believe that the patronage system is necessarily desirable; nor even that it is always and everywhere arguably desirable; but merely that it is a political arrangement that may sometimes be a reasonable choice, and should therefore be left to the judgment of the people's elected representatives. The choice in question, I emphasize, is not just between patronage and a merit-based civil service, but rather among various combinations of the two that may suit different political units and different eras: permitting patronage hiring, for example, but prohibiting patronage dismissal; permitting patronage in most municipal agencies but prohibiting it in the police department; or permitting it in the mayor's office but prohibiting it everywhere else. I find it impossible to say that, always and everywhere, all of these choices fail our "balancing" test.
C
The last point explains why Elrod and Branti should be overruled, rather than merely not extended. Even in the field of constitutional adjudication, where the pull of stare decisis is at its weakest, see Glidden Co. v. Zdanok, 370 U.S. 530, 543 (1962) (opinion of Harlan, J.), one is reluctant to depart from precedent. But when that precedent is not only wrong, not only recent, not only contradicted by a long prior *111 tradition, but also has proved unworkable in practice, then all reluctance ought to disappear. In my view that is the situation here. Though unwilling to leave it to the political process to draw the line between desirable and undesirable patronage, the Court has neither been prepared to rule that no such line exists (i. e., that all patronage is unconstitutional) nor able to design the line itself in a manner that judges, lawyers, and public employees can understand. Elrod allowed patronage dismissals of persons in "policymaking" or "confidential" positions. 427 U.S., at 367 (plurality opinion); id., at 375 (Stewart, J., concurring in judgment). Branti retreated from that formulation, asking instead "whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved." 445 U.S., at 518. What that means is anybody's guess. The Courts of Appeals have devised various tests for determining when "affiliation is an appropriate requirement." See generally Martin, A Decade of Branti Decisions: A Government Officials' Guide to Patronage Dismissals, 39 Am. U. L. Rev. 11, 23-42 (1989). These interpretations of Branti are not only significantly at variance with each other; they are still so general that for most positions it is impossible to know whether party affiliation is a permissible requirement until a court renders its decision.
A few examples will illustrate the shambles Branti has produced. A city cannot fire a deputy sheriff because of his political affiliation,[5] but then again perhaps it can,[6] especially if he is called the "police captain."[7] A county cannot fire on that basis its attorney for the department of social *112 services,[8] nor its assistant attorney for family court,[9] but a city can fire its solicitor and his assistants,[10] or its assistant city attorney,[11] or its assistant state's attorney,[12] or its corporation counsel.[13] A city cannot discharge its deputy court clerk for his political affiliation,[14] but it can fire its legal assistant to the clerk on that basis.[15] Firing a juvenile court bailiff seems impermissible,[16] but it may be permissible if he is assigned permanently to a single judge.[17] A city cannot fire on partisan grounds its director of roads,[18] but it can fire the second in command of the water department.[19] A government cannot discharge for political reasons the senior vice president of its development bank,[20] but it can discharge the regional director of its rural housing administration.[21]
The examples could be multiplied, but this summary should make obvious that the "tests" devised to implement Branti have produced inconsistent and unpredictable results. That uncertainty undermines the purpose of both the nonpatronage *113 rule and the exception. The rule achieves its objective of preventing the "coercion" of political affiliation, see supra, at 97, only if the employee is confident that he can engage in (or refrain from) political activities without risking dismissal. Since the current doctrine leaves many employees utterly in the dark about whether their jobs are protected, they are likely to play it safe. On the other side, the exception was designed to permit the government to implement its electoral mandate. Elrod, supra, at 367 (plurality opinion). But unless the government is fairly sure that dismissal is permitted, it will leave the politically uncongenial official in place, since an incorrect decision will expose it to lengthy litigation and a large damages award, perhaps even against the responsible officials personally.
This uncertainty and confusion are not the result of the fact that Elrod, and then Branti, chose the wrong "line." My point is that there is no right lineor at least no right line that can be nationally applied and that is known by judges. Once we reject as the criterion a long political tradition showing that party-based employment is entirely permissible, yet are unwilling (as any reasonable person must be) to replace it with the principle that party-based employment is entirely impermissible, we have left the realm of law and entered the domain of political science, seeking to ascertain when and where the undoubted benefits of political hiring and firing are worth its undoubted costs. The answer to that will vary from State to State, and indeed from city to city, even if one rejects out of hand (as the Branti line does) the benefits associated with party stability. Indeed, the answer will even vary from year to year. During one period, for example, it may be desirable for the manager of a municipally owned public utility to be a career specialist, insulated from the political system. During another, when the efficient operation of that utility or even its very existence has become a burning political issue, it may be desirable that he be hired and fired on a political basis. The appropriate "mix" of party-based *114 employment is a political question if there ever was one, and we should give it back to the voters of the various political units to decide, through civil service legislation crafted to suit the time and place, which mix is best.
III
Even were I not convinced that Elrod and Branti were wrongly decided, I would hold that they should not be extended beyond their facts, viz., actual discharge of employees for their political affiliation. Those cases invalidated patronage firing in order to prevent the "restraint it places on freedoms of belief and association." Elrod, 427 U. S., at 355 (plurality opinion); see also id., at 357 (patronage "compels or restrains" and "inhibits" belief and association). The loss of one's current livelihood is an appreciably greater constraint than such other disappointments as the failure to obtain a promotion or selection for an uncongenial transfer. Even if the "coercive" effect of the former has been held always to outweigh the benefits of party-based employment decisions, the "coercive" effect of the latter should not be. We have drawn a line between firing and other employment decisions in other contexts, see Wygant v. Jackson Bd. of Education, 476 U.S. 267, 282-283 (1986) (plurality opinion), and should do so here as well.
I would reject the alternative that the Seventh Circuit adopted in this case, which allows a cause of action if the employee can demonstrate that he was subjected to the "substantial equivalent of dismissal." 868 F.2d 943, 950, 954 (1989). The trouble with that seemingly reasonable standard is that it is so imprecise that it will multiply yet again the harmful uncertainty and litigation that Branti has already created. If Elrod and Branti are not to be reconsidered in light of their demonstrably unsatisfactory consequences, I would go no further than to allow a cause of action when the employee has lost his position, that is, his formal title and salary. That narrow ground alone is enough to resolve the constitutional *115 claims in the present case. Since none of the plaintiffs has alleged loss of his position because of affiliation,[22] I would affirm the Seventh Circuit's judgment insofar as it affirmed the dismissal of petitioner Moore's claim and would reverse the Seventh Circuit's judgment insofar as it reversed the dismissal of the claims of other petitioners and of cross-respondents.
The Court's opinion, of course, not only declines to confine Elrod and Branti to dismissals in the narrow sense I have proposed, but, unlike the Seventh Circuit, even extends those opinions beyond "constructive" dismissalsindeed, even beyond adverse treatment of current employeesto all hiring decisions. In the long run there may be cause to rejoice in that extension. When the courts are flooded with litigation under that most unmanageable of standards (Branti) brought by that most persistent and tenacious of suitors (the disappointed officeseeker) we may be moved to reconsider our intrusion into this entire field.
In the meantime, I dissent.
| Today the Court establishes the constitutional principle that party membership is not a permissible factor in the dispensation of government jobs, except those jobs for the performance of which party affiliation is an "appropriate requirement." Ante, at 64. It is hard to say precisely (or even generally) what that exception means, but if there is any category of jobs for whose performance party affiliation is not an appropriate requirement, it is the job of being a judge, where *93 partisanship is not only unneeded but positively undesirable. It is, however, rare that a federal administration of one party will appoint a judge from another party. And it has always been rare. See Thus, the new principle that the Court today announces will be enforced by a corps of judges (the Members of this Court included) who overwhelmingly owe their office to its violation. Something must be wrong here, and I suggest it is the Court. The merit principle for government employment is probably the most favored in modern America, having been widely adopted by civil service legislation at both the state and federal levels. But there is another point of view, described in characteristically Jacksonian fashion by an eminent practitioner of the patronage system, George Washington Plunkitt of Tammany Hall: "I ain't up on sillygisms, but I can give you some arguments that nobody can answer. "First, this great and glorious country was built up by political parties; second, parties can't hold together if their workers don't get offices when they win; third, if the parties go to pieces, the government they built up must go to pieces, too; fourth, then there'll be hell to pay." W. Riordon, Plunkitt of Tammany Hall 13 (1963). It may well be that the Good Government Leagues of America were right, and that Plunkitt, James Michael Curley, and their ilk were wrong; but that is not entirely certain. As the merit principle has been extended and its effects increasingly felt; as the Boss Tweeds, the Tammany Halls, the Pendergast Machines, the Byrd Machines, and the Daley Machines have faded into history; we find that political leaders at all levels increasingly complain of the helplessness of elected government, unprotected by "party discipline," before the demands of small and cohesive interest groups. *94 The choice between patronage and the merit principleor, to be more realistic about it, the choice between the desirable mix of merit and patronage principles in widely varying federal, state, and local political contextsis not so clear that I would be prepared, as an original matter, to chisel a single, inflexible prescription into the Constitution. Fourteen years ago, in the Court did that. was limited however, as was the later decision of to patronage firings, leaving it to state and federal legislatures to determine when and where political affiliation could be taken into account in hirings and promotions. Today the Court makes its constitutional civil service reform absolute, extending to all decisions regarding government employment. Because the First Amendment has never been thought to require this disposition, which may well have disastrous consequences for our political system, I dissent. I The restrictions that the Constitution places upon the government in its capacity as lawmaker, i. e., as the regulator of private conduct, are not the same as the restrictions that it places upon the government in its capacity as employer. We have recognized this in many contexts, with respect to many different constitutional guarantees. Private citizens perhaps cannot be prevented from wearing long hair, but policemen can. Private citizens cannot have their property searched without probable cause, but in many circumstances government employees can. ; Private citizens cannot be punished for refusing to provide the government information that may incriminate them, but government employees can be dismissed when the incriminating information that they refuse to provide relates to the performance of their jobs. With regard to freedom of speech in particular: Private citizens cannot be punished for speech of merely private concern, but government employees can be fired for that reason. Private citizens cannot be punished for partisan political activity, but federal and state employees can be dismissed and otherwise punished for that reason. Public ; Civil Service ; Once it is acknowledged that the Constitution's prohibition against laws "abridging the freedom of speech" does not apply to laws enacted in the government's capacity as employer in the same way that it does to laws enacted in the government's capacity as regulator of private conduct, it may sometimes be difficult to assess what employment practices are permissible and what are not. That seems to me not a difficult question, however, in the present context. The provisions of the Bill of Rights were designed to restrain transient majorities from impairing long-recognized personal liberties. They did not create by implication novel individual rights overturning accepted political norms. Thus, when 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.[1] Such a venerable and accepted tradition is not to *96 be laid on the examining table and scrutinized for its conformity to some abstract principle of First Amendment 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. They are, in these uncertain areas, the very points of reference by which the legitimacy or illegitimacy of other practices is to be figured out. When it appears that the latest "rule," or "three-part test," or "balancing test" devised by the Court has placed us on a collision course with such a landmark practice, it is the former that must be recalculated by us, and not the latter that must be abandoned by our citizens. I know of no other way to formulate a constitutional jurisprudence that reflects, as it should, the principles adhered to, over time, by the American people, rather than those favored by the personal (and necessarily shifting) philosophical dispositions of a majority of this Court. I will not describe at length the claim of patronage to landmark status as one of our accepted political traditions. Justice Powell discussed it in his dissenting opinions in and ; Suffice it to say that patronage was, without any thought that it could be unconstitutional, a basis for government employment from the earliest days of the Republic until and has continued unabated since to the extent still permitted by that unfortunate decision. See, e. g., D. Price, Bringing Back the Parties 24, 32 (194); Gardner, A Theory of the Spoils System, 54 Public Choice 171, 11 ; Toinet & Glenn, Clientelism and Corruption in the "Open" Society: The Case of the United States, in Private Patronage and Public Power 193, 202 (C. Clapham ed. *97 192). Given that unbroken tradition regarding the application of an ambiguous constitutional text, there was in my view no basis for holding that patronage-based dismissals violated the First Amendmentmuch less for holding, as the Court does today, that even patronage hiring does so.[2] II Even accepting the Court's own mode of analysis, however, and engaging in "balancing" a tradition that ought to be part of the scales, and today's extension of them seem to me wrong. A The Court limits patronage on the ground that the individual's interest in uncoerced belief and expression outweighs the systemic interests invoked to justify the practice. Ante, *9 at 6-72. The opinion indicates that the government may prevail only if it proves that the practice is "narrowly tailored to further vital government interests." Ante, at 74. That strict-scrutiny standard finds no support in our cases. Although our decisions establish that government employees do not lose all constitutional rights, we have consistently applied a lower level of scrutiny when "the governmental function operating [is] not the power to regulate or license, as lawmaker, an entire trade or profession, or to control an entire branch of private business, but, rather, as proprietor, to manage [its] internal operatio[ns]" Cafeteria & Restaurant When dealing with its own employees, the government may not act in a manner that is "patently arbitrary or discriminatory," but its regulations are valid if they bear a "rational connection" to the governmental end sought to be served, 425 U. S., at In particular, restrictions on speech by public employees are not judged by the test applicable to similar restrictions on speech by nonemployees. We have said that "[a] governmental employer may subject its employees to such special restrictions on free expression as are reasonably necessary to promote effective government." In Public 330 U. S., at upholding provisions of the Hatch Act which prohibit political activities by federal employees, we said that "it is not necessary that the act regulated be anything more than an act reasonably deemed by Congress to interfere with the efficiency of the public service." We reaffirmed in Civil Service 413 U. S., at over a dissent by Justice Douglas arguing against application of a special standard to Government employees, except insofar as their "job performance" is concerned, We did not say that the Hatch Act was narrowly tailored to meet *99 the government's interest, but merely deferred to the judgment of Congress, which we were not "in any position to dispute." Indeed, we recognized that the Act was not indispensably necessary to achieve those ends, since we repeatedly noted that "Congress at some time [may] come to a different view." ; see also In we upheld similar restrictions on state employees, though directed "at political expression which if engaged in by private persons would plainly be protected by the First and Fourteenth Amendments," To the same effect are cases that specifically concern adverse employment action taken against public employees because of their speech. In we recognized: "[T]he State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Because the restriction on speech is more attenuated when the government conditions employment than when it imposes criminal penalties, and because "government offices could not function if every employment decision became a constitutional matter," we have held that government employment decisions taken on the basis of an employee's speech do not "abridg[e] the freedom of speech," U. S. Const., Amdt. 1, merely because they fail *100 the narrow-tailoring and compelling-interest tests applicable to direct regulation of speech. We have not subjected such decisions to strict scrutiny, but have accorded "a wide degree of deference to the employer's judgment" that an employee's speech will interfere with close working When the government takes adverse action against an employee on the basis of his political affiliation (an interest whose constitutional protection is derived from the interest in speech), the same analysis applies. That is why both the and the opinion concurring in the judgment, as well as -515, and the Court today, ante, at 72, rely on a case that applied the test announced in Pickering, not the strict-scrutiny test applied to restrictions imposed on the public at large. Since the government may dismiss an employee for political speech "reasonably deemed by Congress to interfere with the efficiency of the public service," Public at it follows, a fortiori, that the government may dismiss an employee for political affiliation if "reasonably necessary to promote effective government." at While it is clear from the above cases that the normal "strict scrutiny" that we accord to government regulation of speech is not applicable in this field,[3] the precise test that replaces * it is not so clear; we have used various formulations. The one that appears in the case dealing with an employment practice closest in its effects to patronage is whether the *102 practice could be "reasonably deemed" by the enacting legislature to further a legitimate goal. Public 330 U. S., at For purposes of my ensuing discussion, however, I will apply a less permissive standard that seems more in accord with our general "balancing" test: Can the governmental advantages of this employment practice reasonably be deemed to outweigh its "coercive" effects? B Preliminarily, I may observe that the Court today not only declines, in this area replete with constitutional ambiguities, to give the clear and continuing tradition of our people the dispositive effect I think it deserves, but even declines to give it substantial weight in the balancing. That is contrary to what the Court has done in many other contexts. In evaluating *103 so-called "substantive due process" claims we have examined our history and tradition with respect to the asserted right. See, e. g., Michael ; In evaluating claims that a particular procedure violates the Due Process Clause we have asked whether the procedure is traditional. See, e. g., And in applying the Fourth Amendment's reasonableness test we have looked to the history of judicial and public acceptance of the type of search in question. See, e. g., See also Press-Enterprise ; Richmond Newspapers, 44 U.S. 555, 59 ("Such a tradition [of public access] commands respect in part because the Constitution carries the gloss of history"); 67 But even laying tradition entirely aside, it seems to me our balancing test is amply met. I assume, as the Court's opinion assumes, that the balancing is to be done on a generalized basis, and not case by case. The Court holds that the governmental benefits of patronage cannot reasonably be thought to outweigh its "coercive" effects (even the lesser "coercive" effects of patronage hiring as opposed to patronage firing) not merely in 1990 in the State of Illinois, but at any time in any of the numerous political subdivisions of this vast country. It seems to me that that categorical pronouncement reflects a naive vision of politics and an inadequate appreciation of the systemic effects of patronage in promoting political stability *104 and facilitating the social and political integration of previously powerless groups. The whole point of my dissent is that the desirability of patronage is a policy question to be decided by the people's representatives; I do not mean, therefore, to endorse that system. But in order to demonstrate that a legislature could reasonably determine that its benefits outweigh its "coercive" effects, I must describe those benefits as the proponents of patronage see them: As Justice Powell discussed at length in his dissent, patronage stabilizes political parties and prevents excessive political fragmentationboth of which are results in which States have a strong governmental interest. Party strength requires the efforts of the rank and file, especially in "the dull periods between elections," to perform such tasks as organizing precincts, registering new voters, and providing services. 427 U. S., at 35 Even the most enthusiastic supporter of a party's program will shrink before such drudgery, and it is folly to think that ideological conviction alone will motivate sufficient numbers to keep the party going through the off years. "For the most part, as every politician knows, the hope of some reward generates a major portion of the local political activity supporting parties." Here is the judgment of one such politician, Jacob Arvey (best known as the promoter of Adlai Stevenson): Patronage is "`a necessary evil if you want a strong organization, because the patronage system permits of discipline, and without discipline, there's no party organization.'" Quoted in M. Tolchin & S. Tolchin, To the Victor 36 (1971). A major study of the patronage system describes the reality as follows: "[A]lthough men have many motives for entering political life the vast underpinning of both major parties is made up of men who seek practical rewards. Tangible advantages constitute the unifying thread of most successful political practitioners" *105 "With so little patronage cement, party discipline is relatively low; the rate of participation and amount of service the party can extract from [Montclair] county committeemen are minuscule compared with Cook County. The party considers itself lucky if 50 percent of its committeemen show up at meetingseven those labeled `urgent'while even lower percentages turn out at functions intended to produce crowds for visiting candidates." See also W. Grimshaw, The Political Economy of Machine Politics, 4 Corruption and Reform 15, 30 ; G. Pomper, Voters, Elections, and Parties 255 (19); Why Political Machines Have Not Withered Away and Other Revisionist Thoughts, 34 J. Politics 365, 34 The Court simply refuses to acknowledge the link between patronage and party discipline, and between that and party success. It relies (as did the in ) on a single study of a rural Pennsylvania county by Professor Sorauf, ante, at 75a work that has been described as "more persuasive about the ineffectuality of Democratic leaders in Centre County than about the generalizability of [its] findings." at 34, n. 39. It is unpersuasive to claim, as the Court does, that party workers are obsolete because campaigns are now conducted through media and other money-intensive means. Ante, at 75. Those techniques have supplemented but not supplanted personal contacts. See Price, Bringing Back the Parties, at 25. Certainly they have not made personal contacts unnecessary in campaigns for the lower level offices that are the foundations of party strength, nor have they replaced the myriad functions performed by party regulars not directly related to campaigning. And to the extent such techniques have replaced older methods of campaigning (partly in response to the limitations the Court has placed on patronage), the political system is not clearly better off. See at 34 ; 445 *106 U. S., at 52 Increased reliance on money-intensive campaign techniques tends to entrench those in power much more effectively than patronagebut without the attendant benefit of strengthening the party system. A challenger can more easily obtain the support of party workers (who can expect to be rewarded even if the candidate losesif not this year, then the next) than the financial support of political action committees (which will generally support incumbents, who are likely to prevail). It is self-evident that eliminating patronage will significantly undermine party discipline; and that as party discipline wanes, so will the strength of the two-party system. But, says the Court, "[p]olitical parties have already survived the substantial decline in patronage employment practices in this century." Ante, at 74. This is almost verbatim what was said in see Fourteen years later it seems much less convincing. Indeed, now that we have witnessed, in 1 of the last 22 years, an Executive Branch of the Federal Government under the control of one party while the Congress is entirely or (for two years) partially within the control of the other party; now that we have undergone the most recent federal election, in which 9% of the incumbents, of whatever party, were returned to office; and now that we have seen elected officials changing their political affiliation with unprecedented readiness, Washington Post, Apr. 10, 1990, p. A1, the statement that "political parties have already survived" has a positively whistling-in-the-graveyard character to it. Parties have assuredly survivedbut as what? As the forges upon which many of the essential compromises of American political life are hammered out? Or merely as convenient vehicles for the conducting of national Presidential elections? The patronage system does not, of course, merely foster political parties in general; it fosters the two-party system in particular. When getting a job, as opposed to effectuating a particular substantive policy, is an available incentive for *107 party workers, those attracted by that incentive are likely to work for the party that has the best chance of displacing the "ins," rather than for some splinter group that has a more attractive political philosophy but little hope of success. Not only is a two-party system more likely to emerge, but the differences between those parties are more likely to be moderated, as each has a relatively greater interest in appealing to a majority of the electorate and a relatively lesser interest in furthering philosophies or programs that are far from the mainstream. The stabilizing effects of such a system are obvious. See Toinet & Glenn, Clientelism and Corruption in the "Open" Society, at 20. In the context of electoral laws we have approved the States' pursuit of such stability, and their avoidance of the "splintered parties and unrestrained factionalism [that] may do significant damage to the fabric of government." Equally apparent is the relatively destabilizing nature of a system in which candidates cannot rely upon patronage-based party loyalty for their campaign support, but must attract workers and raise funds by appealing to various interest groups. See Tolchin & Tolchin, To the Victor, at 127-130. There is little doubt that our decisions in and by contributing to the decline of party strength, have also contributed to the growth of interest-group politics in the last decade. See, e. g., Fitts, The Vice of Virtue, (19). Our decision today will greatly accelerate the trend. It is not only campaigns that are affected, of course, but the subsequent behavior of politicians once they are in power. The replacement of a system firmly in party discipline with one in which each officeholder comes to his own accommodation with competing interest groups produces "a dispersion of political influence that may inhibit a *10 political party from enacting its programs into law."[4] Patronage, moreover, has been a powerful means of achieving the social and political integration of excluded groups. See, e. g., ; Cornwell, Bosses, Machines and Ethnic Politics, in Ethnic Group Politics 190, 195-197 (H. Bailey, Jr., & E. Katz eds. 1969). By supporting and ultimately dominating a particular party "machine," racial and ethnic minorities have on the basis of their politics rather than their race or ethnicity acquired the patronage awards the machine had power to confer. No one disputes the historical accuracy of this observation, and there is no reason to think that patronage can no longer serve that function. The abolition of patronage, however, prevents groups that have only recently obtained political power, especially blacks, from following this path to economic and social advancement. "`Every ethnic group that has achieved political power in American cities has used the bureaucracy to provide jobs in return for political support. It's only when Blacks begin to play the same game that the rules get changed. Now the use of such jobs to build political bases becomes an "evil" activity, and the city insists on taking the control back "downtown."'" New York Amsterdam News, Apr. 1, 197, p. A-4, quoted in Hamilton, The Patron-Recipient Relationship and Minority Politics in New York City, 94 Pol. Sci. Q. 211, 212 (1979). While the patronage system has the benefits argued for above, it also has undoubted disadvantages. It facilitates financial corruption, such as salary kickbacks and partisan political activity on government-paid time. It reduces the efficiency *109 of government, because it creates incentives to hire more and less qualified workers and because highly qualified workers are reluctant to accept jobs that may only last until the next election. And, of course, it applies some greater or lesser inducement for individuals to join and work for the party in power. To hear the Court tell it, this last is the greatest evil. That is not my view, and it has not historically been the view of the American people. Corruption and inefficiency, rather than abridgment of liberty, have been the major criticisms leading to enactment of the civil service lawsfor the very good reason that the patronage system does not have as harsh an effect upon conscience, expression, and association as the Court suggests. As described above, it is the nature of the pragmatic, patronage-based, two-party system to build alliances and to suppress rather than foster ideological tests for participation in the division of political "spoils." What the patronage system ordinarily demands of the party worker is loyalty to, and activity on behalf of, the organization itself rather than a set of political beliefs. He is generally free to urge within the organization the adoption of any political position; but if that position is rejected he must vote and work for the party nonetheless. The diversity of political expression (other than expression of party loyalty) is channeled, in other words, to a different stageto the contests for party endorsement rather than the partisan elections. It is undeniable, of course, that the patronage system entails some constraint upon the expression of views, particularly at the partisan-election stage, and considerable constraint upon the employee's right to associate with the other party. It greatly exaggerates these, however, to describe them as a general "`coercion of belief,'" ante, at 71, quoting ; see also ante, at 75; Indeed, it greatly exaggerates them to call them "coercion" at all, since we generally make a distinction between inducement and compulsion. The public official *110 offered a bribe is not "coerced" to violate the law, and the private citizen offered a patronage job is not "coerced" to work for the party. In sum, I do not deny that the patronage system influences or redirects, perhaps to a substantial degree, individual political expression and political association. But like the many generations of Americans that have preceded us, I do not consider that a significant impairment of free speech or free association. In emphasizing the advantages and minimizing the disadvantages (or at least minimizing one of the disadvantages) of the patronage system, I do not mean to suggest that that system is best. It may not always be; it may never be. To oppose our - jurisprudence, one need not believe that the patronage system is necessarily desirable; nor even that it is always and everywhere arguably desirable; but merely that it is a political arrangement that may sometimes be a reasonable choice, and should therefore be left to the judgment of the people's elected representatives. The choice in question, I emphasize, is not just between patronage and a merit-based civil service, but rather among various combinations of the two that may suit different political units and different eras: permitting patronage hiring, for example, but prohibiting patronage dismissal; permitting patronage in most municipal agencies but prohibiting it in the police department; or permitting it in the mayor's office but prohibiting it everywhere else. I find it impossible to say that, always and everywhere, all of these choices fail our "balancing" test. C The last point explains why and should be overruled, rather than merely not extended. Even in the field of constitutional adjudication, where the pull of stare decisis is at its weakest, see Glidden one is reluctant to depart from precedent. But when that precedent is not only wrong, not only recent, not only contradicted by a long prior *111 tradition, but also has proved unworkable in practice, then all reluctance ought to disappear. In my view that is the situation here. Though unwilling to leave it to the political process to draw the line between desirable and undesirable patronage, the Court has neither been prepared to rule that no such line exists (i. e., that all patronage is unconstitutional) nor able to design the line itself in a manner that judges, lawyers, and public employees can understand. allowed patronage dismissals of persons in "policymaking" or "confidential" positions. ; retreated from that formulation, asking instead "whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved." 445 U.S., at 51. What that means is anybody's guess. The Courts of Appeals have devised various tests for determining when "affiliation is an appropriate requirement." See generally Martin, A Decade of Decisions: A Government Officials' Guide to Patronage Dismissals, These interpretations of are not only significantly at variance with each other; they are still so general that for most positions it is impossible to know whether party affiliation is a permissible requirement until a court renders its decision. A few examples will illustrate the shambles has produced. A city cannot fire a deputy sheriff because of his political affiliation,[5] but then again perhaps it can,[6] especially if he is called the "police captain."[7] A county cannot fire on that basis its attorney for the department of social *112 services,[] nor its assistant attorney for family court,[9] but a city can fire its solicitor and his assistants,[10] or its assistant city attorney,[11] or its assistant state's attorney,[12] or its corporation counsel.[13] A city cannot discharge its deputy court clerk for his political affiliation,[14] but it can fire its legal assistant to the clerk on that basis.[15] Firing a juvenile court bailiff seems impermissible,[16] but it may be permissible if he is assigned permanently to a single judge.[17] A city cannot fire on partisan grounds its director of roads,[1] but it can fire the second in command of the water department.[19] A government cannot discharge for political reasons the senior vice president of its development bank,[20] but it can discharge the regional director of its rural housing administration.[21] The examples could be multiplied, but this summary should make obvious that the "tests" devised to implement have produced inconsistent and unpredictable results. That uncertainty undermines the purpose of both the nonpatronage *113 rule and the exception. The rule achieves its objective of preventing the "coercion" of political affiliation, see only if the employee is confident that he can engage in (or refrain from) political activities without risking dismissal. Since the current doctrine leaves many employees utterly in the dark about whether their jobs are protected, they are likely to play it safe. On the other side, the exception was designed to permit the government to implement its electoral mandate. But unless the government is fairly sure that dismissal is permitted, it will leave the politically uncongenial official in place, since an incorrect decision will expose it to lengthy litigation and a large damages award, perhaps even against the responsible officials personally. This uncertainty and confusion are not the result of the fact that and then chose the wrong "line." My point is that there is no right lineor at least no right line that can be nationally applied and that is known by judges. Once we reject as the criterion a long political tradition showing that party-based employment is entirely permissible, yet are unwilling (as any reasonable person must be) to replace it with the principle that party-based employment is entirely impermissible, we have left the realm of law and entered the domain of political science, seeking to ascertain when and where the undoubted benefits of political hiring and firing are worth its undoubted costs. The answer to that will vary from State to State, and indeed from city to city, even if one rejects out of hand (as the line does) the benefits associated with party stability. Indeed, the answer will even vary from year to year. During one period, for example, it may be desirable for the manager of a municipally owned public utility to be a career specialist, insulated from the political system. During another, when the efficient operation of that utility or even its very existence has become a burning political issue, it may be desirable that he be hired and fired on a political basis. The appropriate "mix" of party-based *114 employment is a political question if there ever was one, and we should give it back to the voters of the various political units to decide, through civil service legislation crafted to suit the time and place, which mix is best. III Even were I not convinced that and were wrongly decided, I would hold that they should not be extended beyond their facts, viz., actual discharge of employees for their political affiliation. Those cases invalidated patronage firing in order to prevent the "restraint it places on freedoms of belief and association." 427 U. S., ; see also The loss of one's current livelihood is an appreciably greater constraint than such other disappointments as the failure to obtain a promotion or selection for an uncongenial transfer. Even if the "coercive" effect of the former has been held always to outweigh the benefits of party-based employment decisions, the "coercive" effect of the latter should not be. We have drawn a line between firing and other employment decisions in other contexts, see 22-23 and should do so here as well. I would reject the alternative that the Seventh Circuit adopted in this case, which allows a cause of action if the employee can demonstrate that he was subjected to the "substantial equivalent of dismissal." 6 F.2d 943, The trouble with that seemingly reasonable standard is that it is so imprecise that it will multiply yet again the harmful uncertainty and litigation that has already created. If and are not to be reconsidered in light of their demonstrably unsatisfactory consequences, I would go no further than to allow a cause of action when the employee has lost his position, that is, his formal title and salary. That narrow ground alone is enough to resolve the constitutional *115 claims in the present case. Since none of the plaintiffs has alleged loss of his position because of affiliation,[22] I would affirm the Seventh Circuit's judgment insofar as it affirmed the dismissal of petitioner Moore's claim and would reverse the Seventh Circuit's judgment insofar as it reversed the dismissal of the claims of other petitioners and of cross-respondents. The Court's opinion, of course, not only declines to confine and to dismissals in the narrow sense I have proposed, but, unlike the Seventh Circuit, even extends those opinions beyond "constructive" dismissalsindeed, even beyond adverse treatment of current employeesto all hiring decisions. In the long run there may be cause to rejoice in that extension. When the courts are flooded with litigation under that most unmanageable of standards () brought by that most persistent and tenacious of suitors (the disappointed officeseeker) we may be moved to reconsider our intrusion into this entire field. In the meantime, I dissent. |
Justice O'Connor | dissenting | false | Hicks v. Feiock | 1988-04-27T00:00:00 | null | https://www.courtlistener.com/opinion/112045/hicks-v-feiock/ | https://www.courtlistener.com/api/rest/v3/clusters/112045/ | 1,988 | 1987-068 | 2 | 5 | 3 | This case concerns a contempt proceeding against a parent who repeatedly failed to comply with a valid court order to make child support payments. In my view, the proceeding is civil as a matter of federal law. Therefore, the Due Process Clause of the Fourteenth Amendment does not prevent the trial court from applying a legislative presumption that the parent remained capable of complying with the order until the time of the contempt proceeding.
*642 I
The facts of this case illustrate how difficult it can be to obtain even modest amounts of child support from a noncustodial parent. Alta Sue Adams married respondent Phillip William Feiock in 1968. The couple resided in California and had three children. In 1973, respondent left the family. Mrs. Feiock filed a petition in the Superior Court of California for the County of Orange seeking dissolution of her marriage, legal custody of the children, and child support. In January 1976, the court entered an interlocutory judgment of dissolution of marriage, awarded custody of the children to Mrs. Feiock, and ordered respondent to pay child support beginning February 1, 1976. The court ordered respondent to pay $35 per child per month for the first four months, and $75 per child per month starting June 1, 1976. The order has never been modified.
After the court entered a final judgment of dissolution of marriage, Mrs. Feiock and the children moved to Ohio. Respondent made child support payments only sporadically and stopped making any payments by December 1982. Pursuant to Ohio's enactment of the Uniform Reciprocal Enforcement of Support Act (URESA), Mrs. Feiock filed a complaint in the Court of Common Pleas of Stark County, Ohio. See Ohio Rev. Code Ann. § 3115.09(B) (1980). The complaint recited that respondent was obliged to pay $225 per month in support, and that respondent was $2,300 in arrears. The Ohio court transmitted the complaint and supporting documents to to the Superior Court of California for the County of Orange, which had jurisdiction over respondent. Petitioner, the Orange County District Attorney, prosecuted the case on behalf of Mrs. Feiock in accordance with California's version of URESA. See Cal. Civ. Proc. Code Ann. § 1670 et seq. (West 1982).
After obtaining several continuances, respondent finally appeared at a hearing before the California court on June 22, 1984. Respondent explained that he had recently become a *643 partner in a flower business that had uncertain prospects. The court ordered respondent to pay $150 per month on a temporary basis, although it did not alter the underlying order. Payments were to begin July 1, 1984.
Respondent made payments only for August and September. Respondent appeared in court three times thereafter, but never asked for a modification of the order. Eventually, the Orange County District Attorney filed Orders to Show Cause and Declarations of Contempt alleging nine counts of contempt based on respondent's failure to make nine of the $150 support payments. At a hearing held August 9, 1985, the District Attorney invoked Cal. Civ. Proc. Code Ann. § 1209.5 (West 1982), which says:
"When a court of competent jurisdiction makes an order compelling a parent to furnish support . . . for his child, . . . proof that the parent was present in court at the time the order was pronounced and proof of noncompliance therewith shall be prima facie evidence of a contempt of court."
In an effort to overcome this presumption, respondent testified regarding his ability to pay at the time of each alleged act of contempt. The court found that respondent had been able to pay five of the missed payments. Accordingly, the court found respondent in contempt on five of the nine counts and sentenced him to 5 days in jail on each count, to be served consecutively, for a total of 25 days. The court suspended execution of the sentence and placed respondent on three years' informal probation on the conditions that he make monthly support payments of $150 starting immediately and additional payments of $50 per month on the arrearage starting October 1, 1985.
Respondent filed a petition for a writ of habeas corpus in the California Court of Appeal, where he prevailed on his argument that § 1209.5 is unconstitutional as a mandatory presumption shifting to the defendant the burden of proof of an element of a criminal offense. That is the argument that the *644 Court confronts in this case. In my view, no remand is necessary because the judgment below is incorrect as a matter of federal law.
II
The California Court of Appeal has erected a substantial obstacle to the enforcement of child support orders. As petitioner vividly describes it, the judgment turns the child support order into "a worthless piece of scrap." Brief for Petitioner 47. The judgment hampers the enforcement of support orders at a time when strengthened enforcement is needed. "The failure of enforcement efforts in this area has become a national scandal. In 1983, only half of custodial parents received the full amount of child support ordered; approximately 26% received some lesser amount, and 24% received nothing at all." Brief for Women's Legal Defense Fund et al. as Amici Curiae 26 (footnote omitted). The facts of this case illustrate how easily a reluctant parent can evade a child support obligation. Congress recognized the serious problem of enforcement of child support orders when it enacted the Child Support Enforcement Amendments of 1984, Pub. L. 98-378, 98 Stat. 1305. S. Rep. No. 98-387, pp. 5-6 (1984); H. R. Rep. No. 98-527, pp. 30, 49 (1983). The California Legislature responded to the problem by enacting the presumption described in § 1209.5. Now, says petitioner, the California Court of Appeal has sabotaged the California Legislature's effort.
Contempt proceedings often will be useless if the parent seeking enforcement of valid support orders must prove that the obligor can comply with the court order. The custodial parent will typically lack access to the financial and employment records needed to sustain the burden imposed by the decision below, especially where the noncustodial parent is self-employed, as is the case here. Serious consequences follow from the California Court of Appeal's decision to invalidate California's statutory presumption that a parent continues *645 to be able to pay the child support previously determined to be within his or her means.
Petitioner asks us to determine as a matter of California law that inability to comply with a support order is an affirmative defense to a contempt charge, so that the burden of persuasion may be placed on the contemnor under Martin v. Ohio, 480 U.S. 228 (1987). Petitioner also contends that the Court of Appeal erred in supposing that § 1209.5 shifts the burden of persuasion rather than merely the burden of production, citing Lyons v. Municipal Court, 75 Cal. App. 3d 829, 838, 142 Cal. Rptr. 449, 452 (1977); Oliver v. Superior Court, 197 Cal. App. 2d 237, 242, 17 Cal. Rptr. 474, 476-477 (1961); 4A J. Goddard, California Practice: Family Law Practice § 686 (3d ed. 1981); 14 Cal. Jur. 3d, Contempt §§ 32, 71 (1974); and 6 B. Witkin, Summary of California Law, Parent and Child § 137 (8th ed. 1974). But the interpretation of California law is the province of California courts. I agree with the majority that, for purposes of this decision, we should assume that the California Court of Appeal correctly determined these matters of state law. Martin v. Ohio, supra; United Gas Public Service Co. v. Texas, 303 U.S. 123, 139 (1938). If the Court of Appeal was in error, the California courts may correct it in future cases.
The linchpin of the Court of Appeal's opinion is its determination that the contempt proceeding against respondent was criminal in nature. The court applied what it understood are the federal due process standards for mandatory evidentiary presumptions in criminal cases. See Ulster County Court v. Allen, 442 U.S. 140, 167 (1979) (mandatory presumptions are impermissible unless "the fact proved is sufficient to support the inference of guilt beyond a reasonable doubt"); Sandstrom v. Montana, 442 U.S. 510, 523-524 (1979). This Court has recognized, by contrast, that civil contempt proceedings do not require proof beyond a reasonable doubt and that the rules governing use of presumptions differ accordingly. In the civil contempt context, we have *646 upheld a rule that shifts to the contemnor the burden of production on ability to comply, United States v. Rylander, 460 U.S. 752, 757 (1983), and we have recognized that the contemnor may bear the burden of persuasion on this issue as well, Maggio v. Zeitz, 333 U.S. 56, 75-76 (1948). If the contempt proceeding in this case may be characterized as civil in nature, as petitioner urges, then under our precedents the presumption provided in Cal. Civ. Proc. Code Ann. § 1209.5 (West 1982) would not violate the Due Process Clause.
The characterization of a state proceeding as civil or criminal for the purpose of applying the Due Process Clause of the Fourteenth Amendment is itself a question of federal law. Allen v. Illinois, 478 U.S. 364 (1986). The substance of particular contempt proceedings determines whether they are civil or criminal, regardless of the label attached by the court conducting the proceedings. See Shillitani v. United States, 384 U.S. 364, 368-370 (1966); Penfield Co. v. SEC, 330 U.S. 585, 590 (1947); Nye v. United States, 313 U.S. 33, 42-43 (1941); Lamb v. Cramer, 285 U.S. 217, 220-221 (1932); Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441-443 (1911). Civil contempt proceedings are primarily coercive; criminal contempt proceedings are punitive. As the Court explained in Gompers: "The distinction between refusing to do an act commanded, remedied by imprisonment until the party performs the required act; and doing an act forbidden, punished by imprisonment for a definite term; is sound in principle, and generally, if not universally, affords a test by which to determine the character of the punishment." 221 U.S., at 443. Failure to pay alimony is an example of the type of act cognizable in an action for civil contempt. Id., at 442.
Whether a particular contempt proceeding is civil or criminal can be inferred from objective features of the proceeding and the sanction imposed. The most important indication is whether the judgment inures to the benefit of another party to the proceeding. A fine payable to the complaining party *647 and proportioned to the complainant's loss is compensatory and civil. United States v. Mine Workers, 330 U.S. 258, 304 (1947). Because the compensatory purpose limits the amount of the fine, the contemnor is not exposed to a risk of punitive sanctions that would make criminal safeguards necessary. By contrast, a fixed fine payable to the court is punitive and criminal in character.
An analogous distinction can be drawn between types of sentences of incarceration. Commitment to jail or prison for a fixed term usually operates as a punitive sanction because it confers no advantage on the other party. Gompers, supra, at 449. But if a contemnor is incarcerated until he or she complies with a court order, the sanction is civil. Although the imprisonment does not compensate the adverse party directly, it is designed to obtain compliance with a court order made in that party's favor. "When the [contemnors] carry `the keys of their prison in their own pockets,' the action `is essentially a civil remedy designed for the benefit of other parties and has quite properly been exercised for centuries to secure compliance with judicial decrees.' " Shillitani, supra, at 368 (citations omitted).
III
Several peculiar features of California's contempt law make it difficult to determine whether the proceeding in this case was civil or criminal. All contempt proceedings in California courts are governed by the same procedural rules. Cal. Civ. Proc. Code Ann. §§ 1209-1222 (West 1982 and Supp. 1988); In re Morris, 194 Cal. 63, 67, 227 P. 914, 915 (1924); Wright, Byrne, Haakh, Westbrook, & Wheat, Civil and Criminal Contempt in the Federal Courts, 17 F. R. D. 167, 180 (1955). Because state law provides that defendants in civil contempt proceedings are entitled to most of the protections guaranteed to ordinary criminal defendants, the California courts have held that civil contempt proceedings are quasi-criminal under state law. See, e. g., Ross v. Superior Court, 19 Cal. 3d 899, 913, 569 P.2d 727, 736 (1977); *648 Culver City v. Superior Court, 38 Cal. 2d 535, 541-542, 241 P.2d 258, 261-262 (1952); In re Martin, 71 Cal. App. 3d 472, 480, 139 Cal. Rptr. 451, 455-456 (1977). Therefore, indications that the California Superior Court conducted respondent's hearing as a criminal proceeding do not conclusively demonstrate for purposes of federal due process analysis that respondent was tried for criminal contempt.
Certain formal aspects of the proceeding below raise the possibility that it involved criminal contempt. The orders to show cause stated that "[a] contempt proceeding is criminal in nature" and that a violation would subject the respondent to "possible penalties." App. 18, 21. The orders advised respondent of his right to an attorney. Ibid. During the hearing, the trial judge told respondent that he had a constitutional right not to testify. Id., at 27. Finally, the judge imposed a determinate sentence of five days in jail for each count of contempt, to be served consecutively. See Cal. Civ. Proc. Code Ann. § 1218 (West 1982) (contempt may be punished by a fine not exceeding $500, or imprisonment not exceeding five days, or both); cf. Cal. Civ. Proc. Code Ann. § 1219 (West 1982) (contempt may be punished by imprisonment until an act is performed, if the contempt is the omission to perform the act).
Nevertheless, the substance of the proceeding below and the conditions on which the sentence was suspended reveal that the proceeding was civil in nature. Mrs. Feiock initiated the underlying action in order to obtain enforcement of the child support order for the benefit of the Feiock children. The California District Attorney conducted the case under a provision of the URESA that authorizes him to act on Mrs. Feiock's behalf. Cal. Civ. Proc. Code Ann. § 1680 (West 1982). As the very caption of the case in this Court indicates, the District Attorney is acting on behalf of Mrs. Feiock, not as the representative of the State of California in a criminal prosecution. Both of the provisions of California's *649 enactment of the URESA that authorize contempt proceedings appear in a chapter of the Code of Civil Procedure entitled "Civil Enforcement." Id., §§ 1672, 1685. It appears that most States enforce child and spousal support orders through civil proceedings like this one, in which the burden of persuasion is shifted to the defendant to show inability to comply. J. Atkinson, Modern Child Custody Practice 556 (1986); H. Krause, Child Support in America 65 (1981); Annot., 53 A. L. R. 2d 591, 607-616 (1957 and Supp. 1987).
These indications that the proceeding was civil are confirmed by the character of the sanction imposed on respondent. The California Superior Court sentenced respondent to a fixed term of 25 days in jail. Without more, this sanction would be punitive and appropriate for a criminal contempt. But the court suspended the determinate sentence and placed respondent on three years' informal probation on the conditions that he comply with the support order in the future and begin to pay on the arrearage that he had accumulated in the past. App. 40. These special conditions aim exclusively at enforcing compliance with the existing child support order.
Our precedents indicate that such a conditional sentence is coercive rather than punitive. Thus in Gompers, we observed that civil contempt may be punished by an order that "the defendant stand committed unless and until he performs the affirmative act required by the court's order." 221 U.S., at 442 (emphasis added). In Shillitani, we decided that civil contempt could be punished by a prison sentence fixed at two years if it included a proviso that the contemnor would be released as soon as he complied with the court order. 384 U.S., at 365. In this case, if respondent performs his obligations under the original court order, he can avoid going to jail at all. Like the sentence in Shillitani, respondent's prison sentence is coercive rather than punitive because it effectively "conditions release upon the contemnor's willingness to [comply]." Id., at 370.
*650 It is true that the order imposing the sentence does not expressly provide that, if respondent is someday incarcerated and if he subsequently complies, he will be released immediately. The parties disagree about what will happen if this contingency arises, Tr. of Oral Arg. 44, 45-47, and there is no need to address today the question whether the failure to grant immediate release would render the sanction criminal. In the case before us respondent carries something even better than the "keys to the prison" in his own pocket: as long as he meets the conditions of his informal probation, he will never enter the jail.
It is critical that the only conditions placed on respondent's probation, apart from the requirement that he conduct himself generally in accordance with the law, are that he cure his past failures to comply with the support order and that he continue to comply in the future.[*] The sanction imposed on respondent is unlike ordinary criminal probation because it is collateral to a civil proceeding initiated by a private party, and respondent's sentence is suspended on the condition that he comply with a court order entered for the benefit of that party. This distinguishes respondent's sentence from suspended criminal sentences imposed outside the contempt context.
This Court traditionally has inquired into the substance of contempt proceedings to determine whether they are civil or criminal, paying particular attention to whether the sanction *651 imposed will benefit another party to the proceeding. In this case, the California Superior Court suspended respondent's sentence on the condition that he bring himself into compliance with a court order providing support for his children, represented in the proceeding by petitioner. I conclude that the proceeding in this case should be characterized as one for civil contempt, and I would reverse the judgment below.
| This case concerns a contempt proceeding against a parent who repeatedly failed to comply with a valid court order to make child support payments. In my view, the proceeding is civil as a matter of federal law. Therefore, the Due Process Clause of the Fourteenth Amendment does not prevent the trial court from applying a legislative presumption that the parent remained capable of complying with the order until the time of the contempt proceeding. *642 I The facts of this case illustrate how difficult it can be to obtain even modest amounts of child support from a noncustodial parent. Alta Sue Adams married respondent Phillip William Feiock in 1968. The couple resided in California and had three children. In 1973, respondent left the family. Mrs. Feiock filed a petition in the Superior Court of California for the County of Orange seeking dissolution of her marriage, legal custody of the children, and child support. In January 1976, the court entered an interlocutory judgment of dissolution of marriage, awarded custody of the children to Mrs. Feiock, and ordered respondent to pay child support beginning February 1, 1976. The court ordered respondent to pay $35 per child per month for the first four months, and $75 per child per month starting June 1, 1976. The order has never been modified. After the court entered a final judgment of dissolution of marriage, Mrs. Feiock and the children moved to Respondent made child support payments only sporadically and stopped making any payments by December 1982. Pursuant to 's enactment of the Uniform Reciprocal Enforcement of Support Act (URESA), Mrs. Feiock filed a complaint in the Court of Common Pleas of Stark County, See (B) (1980). The complaint recited that respondent was obliged to pay $225 per month in support, and that respondent was $2,300 in arrears. The court transmitted the complaint and supporting documents to to the Superior Court of California for the County of Orange, which had jurisdiction over respondent. Petitioner, the Orange County District Attorney, prosecuted the case on behalf of Mrs. Feiock in accordance with California's version of URESA. See Cal. Civ. Proc. Code Ann. 0 et seq. (West 1982). After obtaining several continuances, respondent finally appeared at a hearing before the California court on June 22, 1984. Respondent explained that he had recently become a *643 partner in a flower business that had uncertain prospects. The court ordered respondent to pay $150 per month on a temporary basis, although it did not alter the underlying Payments were to begin July 1, 1984. Respondent made payments only for August and September. Respondent appeared in court three times thereafter, but never asked for a modification of the Eventually, the Orange County District Attorney filed Orders to Show Cause and Declarations of Contempt alleging nine counts of contempt based on respondent's failure to make nine of the $150 support payments. At a hearing held August 9, 1985, the District Attorney invoked Cal. Civ. Proc. Code Ann. 1209.5 (West 1982), which says: "When a court of competent jurisdiction makes an order compelling a parent to furnish support for his child, proof that the parent was present in court at the time the order was pronounced and proof of noncompliance therewith shall be prima facie evidence of a contempt of court." In an effort to overcome this presumption, respondent testified regarding his ability to pay at the time of each alleged act of contempt. The court found that respondent had been able to pay five of the missed payments. Accordingly, the court found respondent in contempt on five of the nine counts and sentenced him to 5 days in jail on each count, to be served consecutively, for a total of 25 days. The court suspended execution of the sentence and placed respondent on three years' informal probation on the conditions that he make monthly support payments of $150 starting immediately and additional payments of $50 per month on the arrearage starting October 1, 1985. Respondent filed a petition for a writ of habeas corpus in the California Court of Appeal, where he prevailed on his argument that 1209.5 is unconstitutional as a mandatory presumption shifting to the defendant the burden of proof of an element of a criminal offense. That is the argument that the *644 Court confronts in this case. In my view, no remand is necessary because the judgment below is incorrect as a matter of federal law. II The California Court of Appeal has erected a substantial obstacle to the enforcement of child support orders. As petitioner vividly describes it, the judgment turns the child support order into "a worthless piece of scrap." Brief for Petitioner 47. The judgment hampers the enforcement of support orders at a time when strengthened enforcement is needed. "The failure of enforcement efforts in this area has become a national scandal. In 1983, only half of custodial parents received the full amount of child support ordered; approximately 26% received some lesser amount, and 24% received nothing at all." Brief for Women's Legal Defense Fund et al. as Amici Curiae 26 (footnote omitted). The facts of this case illustrate how easily a reluctant parent can evade a child support obligation. Congress recognized the serious problem of enforcement of child support orders when it enacted the Child Support Enforcement Amendments of 1984, Stat. 1305. S. Rep. No. 98-387, pp. 5-6 (1984); H. R. Rep. No. 98-527, pp. 30, 49 The California Legislature responded to the problem by enacting the presumption described in 1209.5. Now, says petitioner, the California Court of Appeal has sabotaged the California Legislature's effort. Contempt proceedings often will be useless if the parent seeking enforcement of valid support orders must prove that the obligor can comply with the court The custodial parent will typically lack access to the financial and employment records needed to sustain the burden imposed by the decision below, especially where the noncustodial parent is self-employed, as is the case here. Serious consequences follow from the California Court of Appeal's decision to invalidate California's statutory presumption that a parent continues *645 to be able to pay the child support previously determined to be within his or her means. Petitioner asks us to determine as a matter of California law that inability to comply with a support order is an affirmative defense to a contempt charge, so that the burden of persuasion may be placed on the contemnor under Petitioner also contends that the Court of Appeal erred in supposing that 1209.5 shifts the burden of persuasion rather than merely the burden of production, citing ; ; 4A J. Goddard, California Practice: Family Law Practice 686 (3d ed. 1981); 14 Cal. Jur. 3d, Contempt 32, 71 (1974); and 6 B. Witkin, Summary of California Law, Parent and Child 137 (8th ed. 1974). But the interpretation of California law is the province of California courts. I agree with the majority that, for purposes of this decision, we should assume that the California Court of Appeal correctly determined these matters of state law. United Gas Public Service If the Court of Appeal was in error, the California courts may correct it in future cases. The linchpin of the Court of Appeal's opinion is its determination that the contempt proceeding against respondent was criminal in nature. The court applied what it understood are the federal due process standards for mandatory evidentiary presumptions in criminal cases. See Ulster County ; This Court has recognized, by contrast, that civil contempt proceedings do not require proof beyond a reasonable doubt and that the rules governing use of presumptions differ accordingly. In the civil contempt context, we have *646 upheld a rule that shifts to the contemnor the burden of production on ability to comply, United and we have recognized that the contemnor may bear the burden of persuasion on this issue as well, If the contempt proceeding in this case may be characterized as civil in nature, as petitioner urges, then under our precedents the presumption provided in Cal. Civ. Proc. Code Ann. 1209.5 (West 1982) would not violate the Due Process Clause. The characterization of a state proceeding as civil or criminal for the purpose of applying the Due Process Clause of the Fourteenth Amendment is itself a question of federal law. The substance of particular contempt proceedings determines whether they are civil or criminal, regardless of the label attached by the court conducting the proceedings. See ; Penfield ; ; ; Civil contempt proceedings are primarily coercive; criminal contempt proceedings are punitive. As the Court explained in : "The distinction between refusing to do an act commanded, remedied by imprisonment until the party performs the required act; and doing an act forbidden, punished by imprisonment for a definite term; is sound in principle, and generally, if not universally, affords a test by which to determine the character of the punishment." Failure to pay alimony is an example of the type of act cognizable in an action for civil contempt. Whether a particular contempt proceeding is civil or criminal can be inferred from objective features of the proceeding and the sanction imposed. The most important indication is whether the judgment inures to the benefit of another party to the proceeding. A fine payable to the complaining party *647 and proportioned to the complainant's loss is compensatory and civil. United Because the compensatory purpose limits the amount of the fine, the contemnor is not exposed to a risk of punitive sanctions that would make criminal safeguards necessary. By contrast, a fixed fine payable to the court is punitive and criminal in character. An analogous distinction can be drawn between types of sentences of incarceration. Commitment to jail or prison for a fixed term usually operates as a punitive sanction because it confers no advantage on the other party. But if a contemnor is incarcerated until he or she complies with a court order, the sanction is civil. Although the imprisonment does not compensate the adverse party directly, it is designed to obtain compliance with a court order made in that party's favor. "When the [contemnors] carry `the keys of their prison in their own pockets,' the action `is essentially a civil remedy designed for the benefit of other parties and has quite properly been exercised for centuries to secure compliance with judicial decrees.' " Shillitani, III Several peculiar features of California's contempt law make it difficult to determine whether the proceeding in this case was civil or criminal. All contempt proceedings in California courts are governed by the same procedural rules. Cal. Civ. Proc. Code Ann. 1209-1222 (West 1982 and Supp. 1988); In re Morris, ; Wright, Byrne, Haakh, Westbrook, & Wheat, Civil and Criminal Contempt in the Federal Courts, 17 F. R. D. 180 (1955). Because state law provides that defendants in civil contempt proceedings are entitled to most of the protections guaranteed to ordinary criminal defendants, the California courts have held that civil contempt proceedings are quasi-criminal under state law. See, e. g., ; *648 Culver ; In re Martin, Cal. Rptr. 451, Therefore, indications that the California Superior Court conducted respondent's hearing as a criminal proceeding do not conclusively demonstrate for purposes of federal due process analysis that respondent was tried for criminal contempt. Certain formal aspects of the proceeding below raise the possibility that it involved criminal contempt. The orders to show cause stated that "[a] contempt proceeding is criminal in nature" and that a violation would subject the respondent to "possible penalties." App. 18, 21. The orders advised respondent of his right to an attorney. During the hearing, the trial judge told respondent that he had a constitutional right not to testify. Finally, the judge imposed a determinate sentence of five days in jail for each count of contempt, to be served consecutively. See Cal. Civ. Proc. Code Ann. 1218 (West 1982) (contempt may be punished by a fine not exceeding $500, or imprisonment not exceeding five days, or both); cf. Cal. Civ. Proc. Code Ann. 1219 (West 1982) (contempt may be punished by imprisonment until an act is performed, if the contempt is the omission to perform the act). Nevertheless, the substance of the proceeding below and the conditions on which the sentence was suspended reveal that the proceeding was civil in nature. Mrs. Feiock initiated the underlying action in order to obtain enforcement of the child support order for the benefit of the Feiock children. The California District Attorney conducted the case under a provision of the URESA that authorizes him to act on Mrs. Feiock's behalf. Cal. Civ. Proc. Code Ann. 1680 (West 1982). As the very caption of the case in this Court indicates, the District Attorney is acting on behalf of Mrs. Feiock, not as the representative of the State of California in a criminal prosecution. Both of the provisions of California's *649 enactment of the URESA that authorize contempt proceedings appear in a chapter of the Code of Civil Procedure entitled "Civil Enforcement." 2, 1685. It appears that most States enforce child and spousal support orders through civil proceedings like this one, in which the burden of persuasion is shifted to the defendant to show inability to comply. J. Atkinson, Modern Child Custody Practice 556 ; H. Krause, Child Support in America 65 (1981); Annot., 53 A. L. R. 2d 591, 607-616 These indications that the proceeding was civil are confirmed by the character of the sanction imposed on respondent. The California Superior Court sentenced respondent to a fixed term of 25 days in jail. Without more, this sanction would be punitive and appropriate for a criminal contempt. But the court suspended the determinate sentence and placed respondent on three years' informal probation on the conditions that he comply with the support order in the future and begin to pay on the arrearage that he had accumulated in the past. App. 40. These special conditions aim exclusively at enforcing compliance with the existing child support Our precedents indicate that such a conditional sentence is coercive rather than punitive. Thus in we observed that civil contempt may be punished by an order that "the defendant stand committed unless and until he performs the affirmative act required by the court's " 221 U.S., In Shillitani, we decided that civil contempt could be punished by a prison sentence fixed at two years if it included a proviso that the contemnor would be released as soon as he complied with the court In this case, if respondent performs his obligations under the original court order, he can avoid going to jail at all. Like the sentence in Shillitani, respondent's prison sentence is coercive rather than punitive because it effectively "conditions release upon the contemnor's willingness to [comply]." *650 It is true that the order imposing the sentence does not expressly provide that, if respondent is someday incarcerated and if he subsequently complies, he will be released immediately. The parties disagree about what will happen if this contingency arises, Tr. of Oral Arg. 44, 45-47, and there is no need to address today the question whether the failure to grant immediate release would render the sanction criminal. In the case before us respondent carries something even better than the "keys to the prison" in his own pocket: as long as he meets the conditions of his informal probation, he will never enter the jail. It is critical that the only conditions placed on respondent's probation, apart from the requirement that he conduct himself generally in accordance with the law, are that he cure his past failures to comply with the support order and that he continue to comply in the future.[*] The sanction imposed on respondent is unlike ordinary criminal probation because it is collateral to a civil proceeding initiated by a private party, and respondent's sentence is suspended on the condition that he comply with a court order entered for the benefit of that party. This distinguishes respondent's sentence from suspended criminal sentences imposed outside the contempt context. This Court traditionally has inquired into the substance of contempt proceedings to determine whether they are civil or criminal, paying particular attention to whether the sanction *651 imposed will benefit another party to the proceeding. In this case, the California Superior Court suspended respondent's sentence on the condition that he bring himself into compliance with a court order providing support for his children, represented in the proceeding by petitioner. I conclude that the proceeding in this case should be characterized as one for civil contempt, and I would reverse the judgment below. |
Justice Thomas | concurring | false | Chiafalo v. Washington | 2020-07-06T00:00:00 | null | https://www.courtlistener.com/opinion/4765903/chiafalo-v-washington/ | https://www.courtlistener.com/api/rest/v3/clusters/4765903/ | 2,020 | null | null | null | null | The Court correctly determines that States have the
power to require Presidential electors to vote for the candi-
date chosen by the people of the State. I disagree, however,
with its attempt to base that power on Article II. In my
view, the Constitution is silent on States’ authority to bind
electors in voting. I would resolve this case by simply rec-
ognizing that “[a]ll powers that the Constitution neither
delegates to the Federal Government nor prohibits to the
States are controlled by the people of each State.” U. S.
Term Limits, Inc. v. Thornton, 514 U.S. 779, 848 (1995)
(THOMAS, J., dissenting).
I
A
The Constitution does not address—expressly or by nec-
essary implication—whether States have the power to re-
quire that Presidential electors vote for the candidates cho-
sen by the people. Article II, §1, and the Twelfth
Amendment provide for the election of the President
through a body of electors. But neither speaks directly to a
State’s power over elector voting.
2 CHIAFALO v. WASHINGTON
THOMAS, J., concurring in judgment
The only provision in the Constitution that arguably ad-
dresses a State’s power over Presidential electors is Clause
2 of Article II, §1. That Clause provides, in relevant part,
that “[e]ach State shall appoint, in such Manner as the Leg-
islature thereof may direct, a Number of Electors.” As I
have previously explained, this language “imposes an af-
firmative obligation on the States” to establish the manner
for appointing electors. U. S. Term Limits, 514 U.S., at 864
(dissenting opinion). By using the term “shall,” “the Clause
expressly requires action by the States.” Id., at 862 (inter-
nal quotation marks omitted); see also Maine Community
Health Options v. United States, 590 U. S. ___, ___ (2020)
(slip op., at 12) (“The first sign that the statute imposed an
obligation is its mandatory language: ‘shall’ ”); Lexecon Inc.
v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 35
(1998) (recognizing that “ ‘shall’ [n]ormally creates an obli-
gation”). This obligation to provide the manner of appoint-
ing electors does not expressly delegate power to States; it
simply imposes an affirmative duty. See U. S. Term Limits,
supra, at 862–863 (THOMAS, J., dissenting).
B
In a somewhat cursory analysis, the Court concludes that
the States’ duty to appoint electors “in such Manner as the
Legislature thereof may direct,” Art. II, §1, cl. 2, provides
an express grant of “power to appoint an elector.” Ante, at
9. As explained above, this interpretation erroneously con-
flates the imposition of a duty with the granting of a power.
But even setting that issue aside, I cannot agree with the
Court’s analysis. The Court appears to misinterpret Article
II, §1, by overreading its language as authorizing the broad
power to impose and enforce substantive conditions on ap-
pointment. The Court then misconstrues the State of
Washington’s law as enforcing a condition of appointment.
Cite as: 591 U. S. ____ (2020) 3
THOMAS, J., concurring in judgment
1
The Court’s conclusion that the text of Article II, §1, ex-
pressly grants States the power to impose substantive con-
ditions or qualifications on electors is highly questionable.
Its interpretation appears to strain the plain meaning of
the text, ignore historical evidence, and give the term “Man-
ner” different meanings in parallel provisions of Article I
and Article II.
First, the Court’s attempt to root its analysis in Article II,
§1, seems to stretch the plain meaning of the Constitution’s
text. Article II, §1, provides that States shall appoint elec-
tors “in such Manner as the Legislature thereof may direct.”
At the time of the founding, the term “manner” referred to
a “[f]orm” or “method.” 1 S. Johnson, A Dictionary of the
English Language (6th ed. 1785); see also 1 J. Ash, The New
and Complete Dictionary of the English Language (2d ed.
1795). These definitions suggest that Article II requires
state legislatures merely to set the approach for selecting
Presidential electors, not to impose substantive limitations
on whom may become an elector. And determining the
“Manner” of appointment certainly does not include the
power to impose requirements as to how the electors vote
after they are appointed, which is what the Washington law
addresses. See infra, at 8–9.
Historical evidence from the founding also suggests that
the “Manner” of appointment refers to the method for se-
lecting electors, rather than the substantive limitations
placed on the position. At the Convention, the Framers de-
bated whether Presidential electors should be selected by
the state legislatures or by other electors chosen by the vot-
ers of each State. Oliver Ellsworth and Luther Martin, for
example, thought the President should be chosen by elec-
tors selected by state legislatures. McPherson v. Blacker,
146 U.S. 1, 28 (1892). Alexander Hamilton, however, pre-
ferred a system in which the President would be chosen “by
electors chosen by electors chosen by the people.” Ibid. The
4 CHIAFALO v. WASHINGTON
THOMAS, J., concurring in judgment
final language of Article II “seems to have reconciled [the]
contrariety of views by leaving it to the state legislatures”
to set the Manner of elector appointment. Ibid. In context,
it is clear that the Framers understood “Manner” in Article
II, §1, to refer to the mode of appointing electors—con-
sistent with the plain meaning of the term.
This understanding of “Manner” was seemingly shared
by those at the ratifying conventions. For instance, at the
North Carolina ratifying convention, John Steele stated
that “[t]he power over the manner of elections [under Arti-
cle I, §4] does not include that of saying who shall vote.” 4
Debates on the Constitution 71 (J. Elliot ed. 1863) (empha-
sis added). Rather “the power over the manner only enables
[States] to determine how these electors shall elect.” Ibid.
(emphasis added and deleted). In short, the historical con-
text and contemporaneous use of the term “Manner” seem
to indicate that the Framers and the ratifying public both
understood the term in accordance with its plain meaning.
Finally, the Court’s interpretation gives the same
term—“Manner”—different meanings in two parallel provi-
sions of the Constitution. Article I, §4, states that “[t]he
Times, Places and Manner of holding Elections for Senators
and Representatives, shall be prescribed in each State by
the Legislature thereof.” In U. S. Term Limits, the Court
concluded that the term “Manner” in Article I includes only
“a grant of authority to issue procedural regulations,” not
“the broad power to set qualifications.” 514 U.S., at 832–
833 (majority opinion); see also id., at 861–864 (THOMAS, J.,
dissenting). Yet, today, the Court appears to take the exact
opposite view. The Court interprets the term “Manner”
in Article II, §1, to include the power to impose conditions
or qualifications on the appointment of electors. Ante,
at 9–10.
With respect, I demur. “When seeking to discern the
meaning of a word in the Constitution, there is no better
dictionary than the rest of the Constitution itself.” Arizona
Cite as: 591 U. S. ____ (2020) 5
THOMAS, J., concurring in judgment
State Legislature v. Arizona Independent Redistricting
Comm’n, 576 U.S. 787, 829 (2015) (ROBERTS, C. J., dissent-
ing); cf. Scialabba v. Cuellar de Osorio, 573 U.S. 41, 60
(2014) (KAGAN, J., for the Court) (“ ‘[W]ords repeated in dif-
ferent parts of the same statute generally have the same
meaning’ ” (quoting Law v. Siegel, 571 U.S. 415, 422
(2014)). While terms may not always have the exact same
meaning throughout the Constitution, here we are inter-
preting the same word (“Manner”) in two provisions that
the Court has already stated impose “paralle[l]” duties—
setting the “ ‘Manner of holding Elections’ ” and setting the
“ ‘Manner’ ” of “ ‘appoint[ing] a Number of Electors.’ ” U. S.
Term Limits, 514 U.S., at 804–805 (majority opinion).
Nothing in the Constitution’s text or history indicates that
the Court should take the strongly disfavored step of con-
cluding that the term “Manner” has two different meanings
in these closely aligned provisions.
All the Court can point to in support of its position is a
single sentence in Ray v. Blair, 343 U.S. 214 (1952), which
suggested that a State’s power to impose a requirement
that electors pledge to vote for their party’s nominee comes
from Article II, §1, id., at 227. But this statement is simply
made in passing in response to one of the parties’ argu-
ments. It is curiously bereft of reasoning or analysis of Ar-
ticle II. We generally look to the text to govern our analysis
rather than insouciantly follow stray, “incomplete” state-
ments in our prior opinions, see Thryv, Inc. v. Click-To-Call
Technologies, LP, 590 U. S. ___, ___ (2020) (slip op., at 13).
In my view, we should be guided by the text here.
2
Even accepting the Court’s broad interpretation of Clause
2 of Article II, §1, I cannot agree with its determination that
this Clause expressly authorizes the Washington law at is-
sue here. In an attempt to tie Washington’s law to the
State’s “power to appoint an elector,” see ante, at 9, the
6 CHIAFALO v. WASHINGTON
THOMAS, J., concurring in judgment
Court construes Wash. Rev. Code §29A.56.340 (2016) as
“enforc[ing] a pledge.” See ante, at 10; see also ante, at 1–
2, 7–9, 17. But §29A.56.340 did not involve the enforcement
of a pledge or relate to the appointment process at all.1 It
simply regulated electors’ votes, unconnected to the ap-
pointment process.
To understand the Court’s error, a brief summary of its
theory is necessary. According to the Court, Article II, §1,
grants States “the power to appoint” Presidential electors
“in such Manner as the Legislature thereof may direct.”
Ante, at 9. That “power to appoint an elector,” the Court
states, “includes power to condition his appointment.” Ibid.
The power to condition appointment in turn allows the
State to insist that an “elector pledge to cast his Electoral
College ballot for his party’s presidential nominee.” Ante,
at 9–10. And finally, “the State’s appointment power . . .
enables the enforcement of a pledge.” Ante, at 10. The
Court’s theory is entirely premised on the State exercising
a power to appoint.
Assuming the Court has correctly interpreted Article II,
§1, there are certain circumstances in which this theory
could stand. Some States expressly require electors to
pledge to vote for a party nominee as a condition of appoint-
ment and then impose a penalty if electors violate that
pledge. For example, under Oklahoma law, “[e]very party
nominee for Presidential Elector shall subscribe to an oath,
stating that said nominee, if elected, will cast a ballot for
the persons nominated for the offices of President and Vice
President by the nominee’s party.” Okla. Stat., Tit. 26, §10–
102 (2019). Oklahoma then penalizes the violation of that
oath: “Any Presidential Elector who violates his oath as a
Presidential Elector shall be guilty of a misdemeanor and,
——————
1 In 2019, Washington revised its laws addressing Presidential elec-
tors, eliminating the provision imposing a civil penalty on faithless elec-
tors. See 2019 Wash. Sess. Laws pp. 755–758.
Cite as: 591 U. S. ____ (2020) 7
THOMAS, J., concurring in judgment
upon conviction thereof, shall be punished by a fine of not
more than One Thousand Dollars ($1,000.00).” §10–109
(emphasis added). Other States have similar laws, first re-
quiring a pledge as a condition of appointment and then pe-
nalizing the violation of that pledge. See, e.g., Ind. Code §3–
10–4–1.7(a) (2019) (imposing pledge requirement); §3–10–
4–9(d) (stating that “[a] presidential elector who . . . pre-
sents a ballot marked in violation of the presidential elec-
tor’s pledge executed under section 1.7 . . . of this chapter,
vacates the office of presidential elector” (emphasis added));
Minn. Stat. §208.43 (2020 Cum. Supp.) (imposing pledge re-
quirement); §208.46(c) (stating that “[a]n elector who . . .
presents a ballot marked in violation of the elector’s pledge
executed under section 208.43 . . . vacates the office of elec-
tor” (emphasis added)).2
But not all States attempt to bind electors’ votes through
the appointment process. Some States simply impose a le-
gal duty that has no connection to elector appointment. See
ante, at 5. For example, New Mexico imposes a legal duty
on its electors: “All presidential electors shall cast their bal-
lots in the electoral college for the candidates of the political
party which nominated them as presidential electors.”
N. M. Stat. Ann. §1–15–9(A) (Supp. 2011). And “[a]ny pres-
idential elector who casts his ballot in violation of [this
duty] is guilty of a fourth degree felony.” §1–15–9(B). Cal-
ifornia has a similar system. It first imposes a legal duty
on electors to vote for the nominated candidates of the po-
litical party they represent if those candidates are alive.
Cal. Elec. Code Ann. §6906 (West 2019). It then imposes a
punishment on “[e]very person charged with the perfor-
mance of any duty under any law of this state relating to
elections, who willfully neglects or
——————
2 See also Mont. Code Ann. §§13–25–304, 13–25–307(4) (2019); Neb.
Rev. Stat. §§32–713(2), 32–714(4) (2016); Wash. Rev. Code §§29A.56.084,
29A.56.090(3) (2019).
8 CHIAFALO v. WASHINGTON
THOMAS, J., concurring in judgment
refuses to perform it.” §18002.3 These laws penalize elec-
tors for their faithless votes. But they do not attempt to
regulate the votes of electors through the appointment pro-
cess. In fact, these laws have nothing to do with elector ap-
pointment.
The Court recognizes the distinction between these two
types of laws, i.e., laws enforcing appointment conditions
and laws that regulate electors outside of the appointment
process. See ante, at 5 (recognizing that some States
“merely impose [a] duty by law”). But it claims this is
merely a “small semantic differenc[e].” Ante, at 10, n. 6.
Far from being semantic, the difference between the power
to impose a “condition of appointment” and the power to im-
pose restrictions on electors that have nothing to do with
appointment is fundamental to the Court’s textual argu-
ment. The Court’s entire analysis is premised on States’
purported Article II “power to appoint an elector” and “to
condition his appointment.” Ante, at 9. The Court does not,
and cannot, claim that the text of Article II provides States
power over anything other than the appointment of electors.
See ante, at 9–10.
Here, the challenged Washington law did not enforce any
appointment condition. It provided that “[a]ny elector who
votes for a person or persons not nominated by the party of
which he or she is an elector is subject to a civil penalty of
up to one thousand dollars.” Wash. Rev. Code §29A.56.340
(2016). Unlike the laws of Oklahoma, Indiana, Minnesota
and the other States discussed above, a violation of
§29A.56.340 was not predicated on violating a pledge or any
——————
3 Michigan likewise does not regulate electors through the appoint-
ment process. Under Michigan law, the failure of an already appointed
elector to resign “signifies” that the elector “consent[s] to serve and to
cast his vote for the candidates for president and vice-president appear-
ing on the Michigan ballot of the political party which nominated him.”
Mich. Comp. Laws §168.47 (2008). Attempting to cast a vote for another
candidate “constitutes a resignation from the office of elector.” Ibid.
Cite as: 591 U. S. ____ (2020) 9
THOMAS, J., concurring in judgment
other condition of appointment. In fact, it did not even men-
tion a pledge, which was set forth in a separate, unrefer-
enced provision. See §29A.56.320. Thus, §29A.56.340 had
no connection to the appointment process and could be en-
forced independent of the existence of any pledge require-
ment. While the Court’s description of §29A.56.340 as a law
enforcing a condition of appointment may be helpful for the
Court’s claim that Washington’s law was rooted in Article
II, §1’s “power to appoint,” it is simply not accurate. Thus,
even accepting the Court’s strained reading of Article II,
§1’s text, I cannot agree with the Court’s effort to reconcile
Washington’s law with its desired theory.
In short, the Constitution does not speak to States’ power
to require Presidential electors to vote for the candidates
chosen by the people. The Court’s attempt to ground such
a power in Article II’s text falls short. Rather than contort
the language of both Article II and the state statute, I would
acknowledge that the Constitution simply says nothing
about the States’ power in this regard.
II
When the Constitution is silent, authority resides with
the States or the people. This allocation of power is both
embodied in the structure of our Constitution and expressly
required by the Tenth Amendment. The application of this
fundamental principle should guide our decision here.
A
“The ultimate source of the Constitution’s authority is the
consent of the people of each individual State.” U. S. Term
Limits, 514 U.S., at 846 (THOMAS, J., dissenting). When
the States ratified the Federal Constitution, the people of
each State acquiesced in the transfer of limited power to the
Federal Government. They ceded only those powers
granted to the Federal Government by the Constitution.
10 CHIAFALO v. WASHINGTON
THOMAS, J., concurring in judgment
“The Federal Government and the States thus face differ-
ent default rules: Where the Constitution is silent about the
exercise of a particular power[,] the Federal Government
lacks that power and the States enjoy it.” Id., at 848; see
also United States v. Comstock, 560 U.S. 126, 159 (2010)
(THOMAS, J., dissenting).
This allocation of power is apparent in the structure of
our Constitution. The Federal Government “is acknowl-
edged by all to be one of enumerated powers.” McCulloch
v. Maryland, 4 Wheat. 316, 405 (1819). “[T]he powers del-
egated by the . . . Constitution to the federal government
are few and defined,” while those that belong to the States
“remain . . . numerous and indefinite.” The Federalist No.
45, p. 292 (C. Rossiter ed. 1961) (J. Madison). Article I, for
example, enumerates various legislative powers in §8, but
it specifically limits Congress’ authority to the “legislative
Powers herein granted,” §1. States face no such constraint
because the Constitution does not delineate the powers of
the States. Article I, §10, contains a brief list of powers
removed from the States, but States are otherwise “free to
exercise all powers that the Constitution does not
withhold from them.” Comstock, supra, at 159 (THOMAS, J.,
dissenting).
This structural principle is explicitly enshrined in the
Tenth Amendment. That Amendment states that “[t]he
powers not delegated to the United States by the Constitu-
tion, nor prohibited by it to the States, are reserved to the
States respectively, or to the people.” As Justice Story ex-
plained, “[t]his amendment is a mere affirmation of what,
upon any just reasoning, is a necessary rule of interpreting
the constitution. Being an instrument of limited and enu-
merated powers, it follows irresistibly, that what is not con-
ferred, is withheld, and belongs to the state authorities.” 3
J. Story, Commentaries on the Constitution of the United
States §1900, p. 752 (1833); see also Alden v. Maine, 527
U.S. 706, 714 (1999); New York v. United States, 505 U. S.
Cite as: 591 U. S. ____ (2020) 11
THOMAS, J., concurring in judgment
144, 156 (1992). In other words, the Tenth Amendment
“states but a truism that all is retained which has not been
surrendered,” United States v. Darby, 312 U.S. 100, 124
(1941), “mak[ing] clear that powers reside at the state level
except where the Constitution removes them from that
level,” U. S. Term Limits, supra, at 848 (THOMAS, J., dis-
senting); see also Garcia v. San Antonio Metropolitan
Transit Authority, 469 U.S. 528, 549 (1985).
Thus, “[w]here the Constitution is silent about the exer-
cise of a particular power[,] that is, where the Constitution
does not speak either expressly or by necessary implica-
tion,” the power is “either delegated to the state govern-
ment or retained by the people.” U. S. Term Limits, supra,
at 847–848 (THOMAS, J., dissenting); cf. Martin v. Hunter’s
Lessee, 1 Wheat. 304, 326 (1816) (stating that the Federal
Government’s powers under the Constitution must be “ex-
pressly given, or given by necessary implication”).
B
This fundamental allocation of power applies in the con-
text of the electoral college. Article II, §1, and the Twelfth
Amendment address the election of the President through
a body of electors. These sections of the Constitution pro-
vide the Federal Government with limited powers concern-
ing the election, set various requirements for the electors,
and impose an affirmative obligation on States to appoint
electors. Art. II, §1; Amdt. 12. Each of these directives is
consistent with the general structure of the Constitution
and the principle of reserved powers. See supra, at 9–10;
U. S. Term Limits, supra, at 863 (THOMAS, J., dissenting).
Put simply, nothing in the text or structure of Article II and
the Twelfth Amendment contradicts the fundamental dis-
tribution of power preserved by the Tenth Amendment.
Of course, the powers reserved to the States concerning
Presidential electors cannot “be exercised in such a way as
to violate express constitutional commands.” Williams v.
12 CHIAFALO v. WASHINGTON
THOMAS, J., concurring in judgment
Rhodes, 393 U.S. 23, 29 (1968). That is, powers related to
electors reside with States to the extent that the Constitu-
tion does not remove or restrict that power. Thus, to inval-
idate a state law, there must be “something in the Federal
Constitution that deprives the [States of] the power to enact
such [a] measur[e].” U. S. Term Limits, 514 U.S., at 850
(THOMAS, J., dissenting).
As the Court recognizes, nothing in the Constitution pre-
vents States from requiring Presidential electors to vote for
the candidate chosen by the people. Petitioners ask us to
infer a constitutional right to elector independence by inter-
preting the terms “appoint,” “Electors,” “vote,” and “by Bal-
lot” to align with the Framers’ expectations of discretion in
elector voting. But the Framers’ expectations aid our inter-
pretive inquiry only to the extent that they provide evidence
of the original public meaning of the Constitution. They
cannot be used to change that meaning. As the Court ex-
plains, the plain meaning of the terms relied on by petition-
ers do not appear to “connote independent choice.” Ante, at
11. Thus, “the original expectation[s]” of the Framers as to
elector discretion provide “no reason for holding that the
power confided to the States by the Constitution has ceased
to exist.” McPherson, 146 U.S., at 36; see also ante, at 12–
13.
* * *
“The people of the States, from whom all governmental
powers stem, have specified that all powers not prohibited
to the States by the Federal Constitution are reserved ‘to
the States respectively, or to the people.’ ” U. S. Term Lim-
its, supra, at 852 (THOMAS, J., dissenting). Because I would
decide this case based on that fundamental principle, I con-
cur only in the judgment | The Court correctly determines that States have the power to require Presidential electors to vote for the candi- date chosen by the people of the State. I disagree, however, with attempt to base that power on Article II. In my view, the Constitution is silent on States’ authority to bind electors in voting. I would resolve this case by simply rec- ognizing that “[a]ll powers that the Constitution neither delegates to the Federal Government nor prohib to the States are controlled by the people of each State.” U. S. Term I A The Constitution does not address—expressly or by nec- essary implication—whether States have the power to re- quire that Presidential electors vote for the candidates cho- sen by the people. Article II, and the Twelfth Amendment provide for the election of the President through a body of electors. But neither speaks directly to a State’s power over elector voting. 2 CHIAFALO v. WASHINGTON THOMAS, J., concurring in judgment The only provision in the Constitution that arguably ad- dresses a State’s power over Presidential electors is Clause 2 of Article II, That Clause provides, in relevant part, that “[e]ach State shall appoint, in such Manner as the Leg- islature thereof may direct, a Number of Electors.” As I have previously explained, this language “imposes an af- firmative obligation on the States” to establish the manner for appointing electors. U. S. Term (dissenting opinion). By using the term “shall,” “the Clause expressly requires action by the States.” (inter- nal quotation marks omitted); see also Maine Community Health Options v. United States, 590 U. S. (2020) (slip op., at 12) (“The first sign that the statute imposed an obligation is mandatory language: ‘shall’ ”); Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, (1998) (recognizing that “ ‘shall’ [n]ormally creates an obli- gation”). This obligation to provide the manner of appoint- ing electors does not expressly delegate power to States; it simply imposes an affirmative duty. See U. S. Term –863 B In a somewhat cursory analysis, the Court concludes that the States’ duty to appoint electors “in such Manner as the Legislature thereof may direct,” Art. II, cl. 2, provides an express grant of “power to appoint an elector.” Ante, at 9. As explained above, this interpretation erroneously con- flates the imposition of a duty with the granting of a power. But even setting that issue aside, I cannot agree with the Court’s analysis. The Court appears to misinterpret Article II, by overreading language as authorizing the broad power to impose and enforce substantive conditions on ap- pointment. The Court then misconstrues the State of Washington’s law as enforcing a condition of appointment. Cite as: 591 U. S. (2020) 3 THOMAS, J., concurring in judgment 1 The Court’s conclusion that the text of Article II, ex- pressly grants States the power to impose substantive con- ditions or qualifications on electors is highly questionable. Its interpretation appears to strain the plain meaning of the text, ignore historical evidence, and give the term “Man- ner” different meanings in parallel provisions of Article I and Article II. First, the Court’s attempt to root analysis in Article II, seems to stretch the plain meaning of the Constitution’s text. Article II, provides that States shall appoint elec- tors “in such Manner as the Legislature thereof may direct.” At the time of the founding, the term “manner” referred to a “[f]orm” or “method.” 1 S. Johnson, A Dictionary of the English Language (6th ed. 1785); see also 1 J. Ash, The New and Complete Dictionary of the English Language (2d ed. 1795). These definitions suggest that Article II requires state legislatures merely to set the approach for selecting Presidential electors, not to impose substantive limitations on whom may become an elector. And determining the “Manner” of appointment certainly does not include the power to impose requirements as to how the electors vote after they are appointed, which is what the Washington law addresses. See infra, at 8–9. Historical evidence from the founding also suggests that the “Manner” of appointment refers to the method for se- lecting electors, rather than the substantive limitations placed on the position. At the Convention, the Framers de- bated whether Presidential electors should be selected by the state legislatures or by other electors chosen by the vot- ers of each State. Oliver Ellsworth and Luther Martin, for example, thought the President should be chosen by elec- tors selected by state legislatures. Alexander Hamilton, however, pre- ferred a system in which the President would be chosen “by electors chosen by electors chosen by the people.” The 4 CHIAFALO v. WASHINGTON THOMAS, J., concurring in judgment final language of Article II “seems to have reconciled [the] contrariety of views by leaving it to the state legislatures” to set the Manner of elector appointment. In context, it is clear that the Framers understood “Manner” in Article II, to refer to the mode of appointing electors—con- sistent with the plain meaning of the term. This understanding of “Manner” was seemingly shared by those at the ratifying conventions. For instance, at the North Carolina ratifying convention, John Steele stated that “[t]he power over the manner of elections [under Arti- cle I, does not include that of saying who shall vote.” 4 Debates on the Constitution 71 (J. Elliot ed. 1863) (empha- sis added). Rather “the power over the manner only enables [States] to determine how these electors shall elect.” (emphasis added and deleted). In short, the historical con- text and contemporaneous use of the term “Manner” seem to indicate that the Framers and the ratifying public both understood the term in accordance with plain meaning. Finally, the Court’s interpretation gives the same term—“Manner”—different meanings in two parallel provi- sions of the Constitution. Article I, states that “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” In U. S. Term the Court concluded that the term “Manner” in Article I includes only “a grant of authority to issue procedural regulations,” not “the broad power to set qualifications.” – 833 (majority opinion); see also at 861–864 (THOMAS, J., dissenting). Yet, today, the Court appears to take the exact opposite view. The Court interprets the term “Manner” in Article II, to include the power to impose conditions or qualifications on the appointment of electors. Ante, at 9–10. With respect, I demur. “When seeking to discern the meaning of a word in the Constitution, there is no better dictionary than the rest of the Constitution elf.” Arizona Cite as: 591 U. S. (2020) 5 THOMAS, J., concurring in judgment State (ROBERTS, C. J., dissent- ing); cf. (2014) (KAGAN, J., for the Court) (“ ‘[W]ords repeated in dif- ferent parts of the same statute generally have the same meaning’ ” (quoting (2014)). While terms may not always have the exact same meaning throughout the Constitution, here we are inter- preting the same word (“Manner”) in two provisions that the Court has already stated impose “paralle[l]” duties— setting the “ ‘Manner of holding Elections’ ” and setting the “ ‘Manner’ ” of “ ‘appoint[ing] a Number of Electors.’ ” U. S. Term –805 (majority opinion). Nothing in the Constitution’s text or history indicates that the Court should take the strongly disfavored step of con- cluding that the term “Manner” has two different meanings in these closely aligned provisions. All the Court can point to in support of position is a single sentence in which suggested that a State’s power to impose a requirement that electors pledge to vote for their party’s nominee comes from Article II, But this statement is simply made in passing in response to one of the parties’ argu- ments. It is curiously bereft of reasoning or analysis of Ar- ticle II. We generally look to the text to govern our analysis rather than insouciantly follow stray, “incomplete” state- ments in our prior opinions, see Thryv, Inc. v. Click-To-Call Technologies, LP, 590 U. S. (2020) (slip op., at 13). In my view, we should be guided by the text here. 2 Even accepting the Court’s broad interpretation of Clause 2 of Article II, I cannot agree with determination that this Clause expressly authorizes the Washington law at is- sue here. In an attempt to tie Washington’s law to the State’s “power to appoint an elector,” see ante, at 9, the 6 CHIAFALO v. WASHINGTON THOMAS, J., concurring in judgment Court construes Wash. Rev. Code (2016) as “enforc[ing] a pledge.” See ante, at 10; see also ante, at 1– 2, 7–9, 17. But did not involve the enforcement of a pledge or relate to the appointment process at all.1 It simply regulated electors’ votes, unconnected to the ap- pointment process. To understand the Court’s error, a brief summary of theory is necessary. According to the Court, Article II, grants States “the power to appoint” Presidential electors “in such Manner as the Legislature thereof may direct.” Ante, at 9. That “power to appoint an elector,” the Court states, “includes power to condition his appointment.” The power to condition appointment in turn allows the State to insist that an “elector pledge to cast his Electoral College ballot for his party’s presidential nominee.” Ante, at 9–10. And finally, “the State’s appointment power enables the enforcement of a pledge.” Ante, at 10. The Court’s theory is entirely premised on the State exercising a power to appoint. Assuming the Court has correctly interpreted Article II, there are certain circumstances in which this theory could stand. Some States expressly require electors to pledge to vote for a party nominee as a condition of appoint- ment and then impose a penalty if electors violate that pledge. For example, under Oklahoma law, “[e]very party nominee for Presidential Elector shall subscribe to an oath, stating that said nominee, if elected, will cast a ballot for the persons nominated for the offices of President and Vice President by the nominee’s party.” Okla. Stat., Tit. 26, 102 (2019). Oklahoma then penalizes the violation of that oath: “Any Presidential Elector who violates his oath as a Presidential Elector shall be guilty of a misdemeanor and, —————— 1 In 2019, Washington revised laws addressing Presidential elec- tors, eliminating the provision imposing a civil penalty on faithless elec- tors. See 2019 Wash. Sess. Laws pp. 755–758. Cite as: 591 U. S. (2020) 7 THOMAS, J., concurring in judgment upon conviction thereof, shall be punished by a fine of not more than One Thousand Dollars ($1,000.00).” 109 (emphasis added). Other States have similar laws, first re- quiring a pledge as a condition of appointment and then pe- nalizing the violation of that pledge. See, e.g., – 10–4–1.7(a) (2019) (imposing pledge requirement); 4–9(d) (stating that “[a] presidential elector who pre- sents a ballot marked in violation of the presidential elec- tor’s pledge executed under section 1.7 of this chapter, vacates the office of presidential elector” (emphasis added)); (2020 Cum. Supp.) (imposing pledge re- quirement); (stating that “[a]n elector who presents a ballot marked in violation of the elector’s pledge executed under section 208.43 vacates the office of elec- tor” (emphasis added)).2 But not all States attempt to bind electors’ votes through the appointment process. Some States simply impose a le- gal duty that has no connection to elector appointment. See ante, at 5. For example, New Mexico imposes a legal duty on electors: “All presidential electors shall cast their bal- lots in the electoral college for the candidates of the political party which nominated them as presidential electors.” N. M. Stat. Ann. (Supp. 2011). And “[a]ny pres- idential elector who casts his ballot in violation of [this duty] is guilty of a fourth degree felony.” Cal- ifornia has a similar system. It first imposes a legal duty on electors to vote for the nominated candidates of the po- litical party they represent if those candidates are alive. Cal. Elec. Code Ann. (West 2019). It then imposes a punishment on “[e]very person charged with the perfor- mance of any duty under any law of this state relating to elections, who willfully neglects or —————— 2 See also –25–304, 13–25–307(4) (2019); Neb. Rev. Stat. 32–714(4) (2016); Wash. Rev. Code A.56.090(3) (2019). 8 CHIAFALO v. WASHINGTON THOMAS, J., concurring in judgment refuses to perform it.” These laws penalize elec- tors for their faithless votes. But they do not attempt to regulate the votes of electors through the appointment pro- cess. In fact, these laws have nothing to do with elector ap- pointment. The Court recognizes the distinction between these two types of laws, i.e., laws enforcing appointment conditions and laws that regulate electors outside of the appointment process. See ante, at 5 (recognizing that some States “merely impose [a] duty by law”). But it claims this is merely a “small semantic differenc[e].” Ante, at 10, n. 6. Far from being semantic, the difference between the power to impose a “condition of appointment” and the power to im- pose restrictions on electors that have nothing to do with appointment is fundamental to the Court’s textual argu- ment. The Court’s entire analysis is premised on States’ purported Article II “power to appoint an elector” and “to condition his appointment.” Ante, at 9. The Court does not, and cannot, claim that the text of Article II provides States power over anything other than the appointment of electors. See ante, at 9–10. Here, the challenged Washington law did not enforce any appointment condition. It provided that “[a]ny elector who votes for a person or persons not nominated by the party of which he or she is an elector is subject to a civil penalty of up to one thousand dollars.” Wash. Rev. Code (2016). Unlike the laws of Oklahoma, Indiana, Minnesota and the other States discussed above, a violation of was not predicated on violating a pledge or any —————— 3 Michigan likewise does not regulate electors through the appoint- ment process. Under Michigan law, the failure of an already appointed elector to resign “signifies” that the elector “consent[s] to serve and to cast his vote for the candidates for president and vice-president appear- ing on the Michigan ballot of the political party which nominated him.” (2008). Attempting to cast a vote for another candidate “constitutes a resignation from the office of elector.” Cite as: 591 U. S. (2020) 9 THOMAS, J., concurring in judgment other condition of appointment. In fact, it did not even men- tion a pledge, which was set forth in a separate, unrefer- enced provision. See Thus, had no connection to the appointment process and could be en- forced independent of the existence of any pledge require- ment. While the Court’s description of as a law enforcing a condition of appointment may be helpful for the Court’s claim that Washington’s law was rooted in Article II, “power to appoint,” it is simply not accurate. Thus, even accepting the Court’s strained reading of Article II, text, I cannot agree with the Court’s effort to reconcile Washington’s law with desired theory. In short, the Constitution does not speak to States’ power to require Presidential electors to vote for the candidates chosen by the people. The Court’s attempt to ground such a power in Article II’s text falls short. Rather than contort the language of both Article II and the state statute, I would acknowledge that the Constitution simply says nothing about the States’ power in this regard. II When the Constitution is silent, authority resides with the States or the people. This allocation of power is both embodied in the structure of our Constitution and expressly required by the Tenth Amendment. The application of this fundamental principle should guide our decision here. A “The ultimate source of the Constitution’s authority is the consent of the people of each individual State.” U. S. Term When the States ratified the Federal Constitution, the people of each State acquiesced in the transfer of limited power to the Federal Government. They ceded only those powers granted to the Federal Government by the Constitution. 10 CHIAFALO v. WASHINGTON THOMAS, J., concurring in judgment “The Federal Government and the States thus face differ- ent default rules: Where the Constitution is silent about the exercise of a particular power[,] the Federal Government lacks that power and the States enjoy it.” at ; see also United 5 U.S. 126, This allocation of power is apparent in the structure of our Constitution. The Federal Government “is acknowl- edged by all to be one of enumerated powers.” McCulloch v. Maryland, “[T]he powers del- egated by the Constitution to the federal government are few and defined,” while those that belong to the States “remain numerous and indefinite.” The Federalist No. 45, p. 2 (C. Rossiter ed. 1961) (J. Madison). Article I, for example, enumerates various legislative powers in but it specifically lim Congress’ authority to the “legislative Powers herein granted,” States face no such constraint because the Constitution does not delineate the powers of the States. Article I, contains a brief list of powers removed from the States, but States are otherwise “free to exercise all powers that the Constitution does not withhold from them.” at (THOMAS, J., dissenting). This structural principle is explicitly enshrined in the Tenth Amendment. That Amendment states that “[t]he powers not delegated to the United States by the Constitu- tion, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” As Justice Story ex- plained, “[t]his amendment is a mere affirmation of what, upon any just reasoning, is a necessary rule of interpreting the constitution. Being an instrument of limited and enu- merated powers, it follows irresistibly, that what is not con- ferred, is withheld, and belongs to the state authorities.” 3 J. Story, Commentaries on the Constitution of the United States p. 752 (1833); see also Alden v. Maine, 527 U.S. 706, 714 (1999); New York v. United States, 505 U. S. Cite as: 591 U. S. (2020) 11 THOMAS, J., concurring in judgment 144, 156 (1992). In other words, the Tenth Amendment “states but a truism that all is retained which has not been surrendered,” United (1941), “mak[ing] clear that powers reside at the state level except where the Constitution removes them from that level,” U. S. Term at (THOMAS, J., dis- senting); see also 469 U.S. 5, Thus, “[w]here the Constitution is silent about the exer- cise of a particular power[,] that is, where the Constitution does not speak either expressly or by necessary implica- tion,” the power is “either delegated to the state govern- ment or retained by the people.” U. S. Term at 847– ; cf. (stating that the Federal Government’s powers under the Constitution must be “ex- pressly given, or given by necessary implication”). B This fundamental allocation of power applies in the con- text of the electoral college. Article II, and the Twelfth Amendment address the election of the President through a body of electors. These sections of the Constitution pro- vide the Federal Government with limited powers concern- ing the election, set various requirements for the electors, and impose an affirmative obligation on States to appoint electors. Art. II, Amdt. 12. Each of these directives is consistent with the general structure of the Constitution and the principle of reserved powers. See at 9–10; U. S. Term Put simply, nothing in the text or structure of Article II and the Twelfth Amendment contradicts the fundamental dis- tribution of power preserved by the Tenth Amendment. Of course, the powers reserved to the States concerning Presidential electors cannot “be exercised in such a way as to violate express constitutional commands.” Williams v. 12 That is, powers related to electors reside with States to the extent that the Constitu- tion does not remove or restrict that power. Thus, to inval- idate a state law, there must be “something in the Federal Constitution that deprives the [States of] the power to enact such [a] measur[e].” U. S. Term As the Court recognizes, nothing in the Constitution pre- vents States from requiring Presidential electors to vote for the candidate chosen by the people. Petitioners ask us to infer a constitutional right to elector independence by inter- preting the terms “appoint,” “Electors,” “vote,” and “by Bal- lot” to align with the Framers’ expectations of discretion in elector voting. But the Framers’ expectations aid our inter- pretive inquiry only to the extent that they provide evidence of the original public meaning of the Constitution. They cannot be used to change that meaning. As the Court ex- plains, the plain meaning of the terms relied on by petition- ers do not appear to “connote independent choice.” Ante, at 11. Thus, “the original expectation[s]” of the Framers as to elector discretion provide “no reason for holding that the power confided to the States by the Constitution has ceased to exist.” ; see also ante, at 12– 13. * * * “The people of the States, from whom all governmental powers stem, have specified that all powers not prohibited to the States by the Federal Constitution are reserved ‘to the States respectively, or to the people.’ ” U. S. Term Lim- Because I would decide this case based on that fundamental principle, I con- cur only in the judgment |
Justice Blackmun | majority | false | United States v. Ash | 1973-06-21T00:00:00 | null | https://www.courtlistener.com/opinion/108846/united-states-v-ash/ | https://www.courtlistener.com/api/rest/v3/clusters/108846/ | 1,973 | 1972-166 | 1 | 6 | 3 | In this case the Court is called upon to decide whether *301 the Sixth Amendment[1] grants an accused the right to have counsel present whenever the Government conducts a post-indictment photographic display, containing a picture of the accused, for the purpose of allowing a witness to attempt an identification of the offender. The United States Court of Appeals for the District of Columbia Circuit, sitting en banc, held, by a 5-to-4 vote, that the accused possesses this right to counsel. 149 U. S. App. D. C. 1, 461 F.2d 92 (1972). The court's holding is inconsistent with decisions of the courts of appeals of nine other circuits.[2] We granted certiorari *302 to resolve the conflict and to decide this important constitutional question. 407 U.S. 909 (1972). We reverse and remand.
I
On the morning of August 26, 1965, a man with a stocking mask entered a bank in Washington, D. C., and began waving a pistol. He ordered an employee to hang up the telephone and instructed all others present not to move. Seconds later a second man, also wearing a stocking mask, entered the bank, scooped up money from tellers' drawers into a bag, and left. The gunman followed, and both men escaped through an alley. The robbery lasted three or four minutes.
A Government informer, Clarence McFarland, told authorities that he had discussed the robbery with Charles J. Ash, Jr., the respondent here. Acting on this information, an FBI agent, in February 1966, showed five black-and-white mug shots of Negro males of generally the same age, height, and weight, one of which was of Ash, to four witnesses. All four made uncertain identifications of Ash's picture. At this time Ash was not in custody and had not been charged. On April 1, 1966, an indictment was returned charging Ash and a codefendant, John L. Bailey, in five counts related to this *303 bank robbery, in violation of D. C. Code Ann. § 22-2901 and 18 U.S. C. § 2113 (a).
Trial was finally set for May 1968, almost three years after the crime. In preparing for trial, the prosecutor decided to use a photographic display to determine whether the witnesses he planned to call would be able to make in-court identifications. Shortly before the trial, an FBI agent and the prosecutor showed five color photographs to the four witnesses who previously had tentatively identified the black-and-white photograph of Ash. Three of the witnesses selected the picture of Ash, but one was unable to make any selection. None of the witnesses selected the picture of Bailey which was in the group. This post-indictment[3] identification provides the basis for respondent Ash's claim that he was denied the right to counsel at a "critical stage" of the prosecution.
No motion for severance was made, and Ash and Bailey were tried jointly. The trial judge held a hearing on the suggestive nature of the pretrial photographic displays.[4] The judge did not make a clear ruling on suggestive nature, but held that the Government had demonstrated by "clear and convincing" evidence that in-court identifications would be "based on observation of *304 the suspect other than the intervening observation." App. 63-64.
At trial, the three witnesses who had been inside the bank identified Ash as the gunman, but they were unwilling to state that they were certain of their identifications. None of these made an in-court identification of Bailey. The fourth witness, who had been in a car outside the bank and who had seen the fleeing robbers after they had removed their masks, made positive in-court identifications of both Ash and Bailey. Bailey's counsel then sought to impeach this in-court identification by calling the FBI agent who had shown the color photographs to the witnesses immediately before trial. Bailey's counsel demonstrated that the witness who had identified Bailey in court had failed to identify a color photograph of Bailey. During the course of the examination, Bailey's counsel also, before the jury, brought out the fact that this witness had selected another man as one of the robbers. At this point the prosecutor became concerned that the jury might believe that the witness had selected a third person when, in fact, the witness had selected a photograph of Ash. After a conference at the bench, the trial judge ruled that all five color photographs would be admitted into evidence. The Court of Appeals held that this constituted the introduction of a post-indictment identification at the prosecutor's request and over the objection of defense counsel.[5]
*305 McFarland testified as a Government witness. He said he had discussed plans for the robbery with Ash before the event and, later, had discussed the results of the robbery with Ash in the presence of Bailey. McFarland was shown to possess an extensive criminal record and a history as an informer.
The jury convicted Ash on all counts. It was unable to reach a verdict on the charges against Bailey, and his motion for acquittal was granted. Ash received concurrent sentences on the several counts, the two longest being 80 months to 12 years.
The five-member majority of the Court of Appeals held that Ash's right to counsel, guaranteed by the Sixth Amendment, was violated when his attorney was not given the opportunity to be present at the photographic displays conducted in May 1968 before the trial. The majority relied on this Court's lineup cases, United States v. Wade, 388 U.S. 218 (1967), and Gilbert v. California, 388 U.S. 263 (1967), and on Stovall v. Denno, 388 U.S. 293 (1967).
The majority did not reach the issue of suggestiveness; their opinion implies, however, that they would order a remand for additional findings by the District Court. 149 U. S. App. D. C., at 7, 461 F.2d, at 98. The majority refrained from deciding whether the in-court identifications could have independent bases, id., at 14-15 and nn. 20, 21, 461 F.2d, at 105-106 and nn. 20, 21, but expressed doubt that the identifications at the trial had independent origins.
Dissenting opinions, joined by four judges, disagreed with the decision of the majority that the photographic identification was a "critical stage" requiring counsel, and criticized the majority's suggestion that the in-court identifications were tainted by defects in the photographic identifications. Id., at 14-43, 461 F.2d, at 106-134.
*306 II
The Court of Appeals relied exclusively on that portion of the Sixth Amendment providing, "In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." The right to counsel in Anglo-American law has a rich historical heritage, and this Court has regularly drawn on that history in construing the counsel guarantee of the Sixth Amendment. We re-examine that history in an effort to determine the relationship between the purposes of the Sixth Amendment guarantee and the risks of a photographic identification.
In Powell v. Alabama, 287 U.S. 45, 60-66 (1932), the Court discussed the English common-law rule that severely limited the right of a person accused of a felony to consult with counsel at trial. The Court examined colonial constitutions and statutes and noted that "in at least twelve of the thirteen colonies the rule of the English common law, in the respect now under consideration, had been definitely rejected and the right to counsel fully recognized in all criminal prosecutions, save that in one or two instances the right was limited to capital offenses or to the more serious crimes." Id., at 64-65. The Sixth Amendment counsel guarantee, thus, was derived from colonial statutes and constitutional provisions designed to reject the English common-law rule.
Apparently several concerns contributed to this rejection at the very time when countless other aspects of the common law were being imported. One consideration was the inherent irrationality of the English limitation. Since the rule was limited to felony proceedings, the result, absurd and illogical, was that an accused misdemeanant could rely fully on counsel, but *307 the accused felon, in theory at least,[6] could consult counsel only on legal questions that the accused proposed to the court. See Powell v. Alabama, 287 U. S., at 60. English writers were appropriately critical of this inconsistency. See, for example, 4 W. Blackstone, Commentaries *355.
A concern of more lasting importance was the recognition and awareness that an unaided layman had little skill in arguing the law or in coping with an intricate procedural system. The function of counsel as a guide through complex legal technicalities long has been recognized by this Court. Mr. Justice Sutherland's well-known observations in Powell bear repeating here:
"Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence." 287 U.S., at 69.
The Court frequently has interpreted the Sixth Amendment *308 to assure that the "guiding hand of counsel" is available to those in need of its assistance. See, for example, Gideon v. Wainwright, 372 U.S. 335, 344-345 (1963), and Argersinger v. Hamlin, 407 U.S. 25, 31 (1972).
Another factor contributing to the colonial recognition of the accused's right to counsel was the adoption of the institution of the public prosecutor from the Continental inquisitorial system. One commentator has explained the effect of this development:
"[E]arly in the eighteenth century the American system of judicial administration adopted an institution which was (and to some extent still is) unknown in England: while rejecting the fundamental juristic concepts upon which continental Europe's inquisitorial system of criminal procedure is predicated, the colonies borrowed one of its institutions, the public prosecutor, and grafted it upon the body of English (accusatorial) procedure embodied in the common law. Presumably, this innovation was brought about by the lack of lawyers, particularly in the newly settled regions, and by the increasing distances between the colonial capitals on the eastern seaboard and the ever-receding western frontier. Its result was that, at a time when virtually all but treason trials in England were still in the nature of suits between private parties, the accused in the colonies faced a government official whose specific function it was to prosecute, and who was incomparably more familiar than the accused with the problems of procedure, the idiosyncrasies of juries, and, last but not least, the personnel of the court." F. Heller, The Sixth Amendment 20-21 (1951) (footnote omitted).
*309 Thus, an additional motivation for the American rule was a desire to minimize the imbalance in the adversary system that otherwise resulted with the creation of a professional prosecuting official. Mr. Justice Black, writing for the Court in Johnson v. Zerbst, 304 U.S. 458, 462-463 (1938), spoke of this equalizing effect of the Sixth Amendment's counsel guarantee:
"It embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel."
This historical background suggests that the core purpose of the counsel guarantee was to assure "Assistance" at trial, when the accused was confronted with both the intricacies of the law and the advocacy of the public prosecutor.[7] Later developments have led this Court *310 to recognize that "Assistance" would be less than meaningful if it were limited to the formal trial itself.
This extension of the right to counsel to events before trial has resulted from changing patterns of criminal procedure and investigation that have tended to generate pretrial events that might appropriately be considered to be parts of the trial itself. At these newly emerging and significant events, the accused was confronted, just as at trial, by the procedural system, or by his expert adversary, or by both. In Wade, the Court explained the process of expanding the counsel guarantee to these confrontations:
"When the Bill of Rights was adopted, there were no organized police forces as we know them today. The accused confronted the prosecutor and the witnesses against him, and the evidence was marshalled, largely at the trial itself. In contrast, today's law enforcement machinery involves critical confrontations of the accused by the prosecution at pretrial proceedings where the results might well settle the accused's fate and reduce the trial itself to a mere formality. In recognition of these realities of modern criminal prosecution, our cases have construed the Sixth Amendment guarantee to apply to `critical' *311 stages of the proceedings." 388 U.S., at 224 (footnote omitted).
The Court consistently has applied a historical interpretation of the guarantee, and has expanded the constitutional right to counsel only when new contexts appear presenting the same dangers that gave birth initially to the right itself.
Recent cases demonstrate the historical method of this expansion. In Hamilton v. Alabama, 368 U.S. 52 (1961), and in White v. Maryland, 373 U.S. 59 (1963), the accused was confronted with the procedural system and was required, with definite consequences, to enter a plea. In Massiah v. United States, 377 U.S. 201 (1964), the accused was confronted by prosecuting authorities who obtained, by ruse and in the absence of defense counsel, incriminating statements. In Coleman v. Alabama, 399 U.S. 1 (1970), the accused was confronted by his adversary at a "critical stage" preliminary hearing at which the uncounseled accused could not hope to obtain so much benefit as could his skilled adversary.
The analogy between the unrepresented accused at the pretrial confrontation and the unrepresented defendant at trial, implicit in the cases mentioned above, was explicitly drawn in Wade:
"The trial which might determine the accused's fate may well not be that in the courtroom but that at the pretrial confrontation, with the State aligned against the accused, the witness the sole jury, and the accused unprotected against the overreaching, intentional or unintentional, and with little or no effective appeal from the judgment there rendered by the witness`that's the man.'" 388 U.S., at 235-236.
*312 Throughout this expansion of the counsel guarantee to trial-like confrontations, the function of the lawyer has remained essentially the same as his function at trial. In all cases considered by the Court, counsel has continued to act as a spokesman for, or advisor to, the accused. The accused's right to the "Assistance of Counsel" has meant just that, namely, the right of the accused to have counsel acting as his assistant. In Hamilton and White, for example, the Court envisioned the lawyer as advising the accused on available defenses in order to allow him to plead intelligently. 368 U.S., at 54-55; 373 U. S., at 60. In Massiah counsel could have advised his client on the benefits of the Fifth Amendment and could have sheltered him from the overreaching of the prosecution. 377 U.S., at 205. Cf. Miranda v. Arizona, 384 U.S. 436, 466 (1966). In Coleman the skill of the lawyer in examining witnesses, probing for evidence, and making legal arguments was relied upon by the Court to demonstrate that, in the light of the purpose of the preliminary hearing under Alabama law, the accused required "Assistance" at that hearing. 399 U.S., at 9.
The function of counsel in rendering "Assistance" continued at the lineup under consideration in Wade and its companion cases. Although the accused was not confronted there with legal questions, the lineup offered opportunities for prosecuting authorities to take advantage of the accused. Counsel was seen by the Court as being more sensitive to, and aware of, suggestive influences than the accused himself, and as better able to reconstruct the events at trial. Counsel present at lineup would be able to remove disabilities of the accused in precisely the same fashion that counsel compensated for the disabilities of the layman at trial. Thus, the Court mentioned that the accused's memory might be dimmed by "emotional tension," that the accused's credibility at *313 trial would be diminished by his status as defendant, and that the accused might be unable to present his version effectively without giving up his privilege against compulsory self-incrimination. United States v. Wade, 388 U. S., at 230-231. It was in order to compensate for these deficiencies that the Court found the need for the assistance of counsel.
This review of the history and expansion of the Sixth Amendment counsel guarantee demonstrates that the test utilized by the Court has called for examination of the event in order to determine whether the accused required aid in coping with legal problems or assistance in meeting his adversary. Against the background of this traditional test, we now consider the opinion of the Court of Appeals.
III
Although the Court of Appeals' majority recognized the argument that "a major purpose behind the right to counsel is to protect the defendant from errors that he himself might make if he appeared in court alone," the court concluded that "other forms of prejudice," mentioned and recognized in Wade, could also give rise to a right to counsel. 149 U. S. App. D. C., at 10, 461 F.2d, at 101. These forms of prejudice were felt by the court to flow from the possibilities for mistaken identification inherent in the photographic display.[8]
*314 We conclude that the dangers of mistaken identification, mentioned in Wade, were removed from context by the Court of Appeals and were incorrectly utilized as a sufficient basis for requiring counsel. Although Wade did discuss possibilities for suggestion and the difficulty for reconstructing suggestivity, this discussion occurred only after the Court had concluded that the lineup constituted a trial-like confrontation, requiring the "Assistance of Counsel" to preserve the adversary process by compensating for advantages of the prosecuting authorities.
The above discussion of Wade has shown that the traditional Sixth Amendment test easily allowed extension of counsel to a lineup. The similarity to trial was apparent, and counsel was needed to render "Assistance" in counterbalancing any "overreaching" by the prosecution.
After the Court in Wade held that a lineup constituted a trial-like confrontation requiring counsel, a more difficult issue remained in the case for consideration. The same changes in law enforcement that led to lineups and pretrial hearings also generated other events at which the accused was confronted by the prosecution. The Government had argued in Wade that if counsel was required at a lineup, the same forceful considerations would mandate counsel at other preparatory steps in the "gathering of the prosecution's evidence," such as, for *315 particular example, the taking of fingerprints or blood samples. 388 U.S., at 227.
The Court concluded that there were differences. Rather than distinguishing these situations from the lineup in terms of the need for counsel to assure an equal confrontation at the time, the Court recognized that there were times when the subsequent trial would cure a one-sided confrontation between prosecuting authorities and the uncounseled defendant. In other words, such stages were not "critical." Referring to fingerprints, hair, clothing, and other blood samples, the Court explained:
"Knowledge of the techniques of science and technology is sufficiently available, and the variables in techniques few enough, that the accused has the opportunity for a meaningful confrontation of the Government's case at trial through the ordinary processes of cross-examination of the Government's expert witnesses and the presentation of the evidence of his own experts." 388 U.S., at 227-228.
The structure of Wade, viewed in light of the careful limitation of the Court's language to "confrontations,"[9]*316 makes it clear that lack of scientific precision and inability to reconstruct an event are not the tests for requiring counsel in the first instance. These are, instead, the tests to determine whether confrontation with counsel at trial can serve as a substitute for counsel at the pretrial confrontation. If accurate reconstruction is possible, the risks inherent in any confrontation still remain, but the opportunity to cure defects at trial causes the confrontation to cease to be "critical." The opinion of the Court even indicated that changes in procedure might cause a lineup to cease to be a "critical" confrontation:
"Legislative or other regulations, such as those of local police departments, which eliminate the risks of abuse and unintentional suggestion at lineup proceedings and the impediments to meaningful confrontation at trial may also remove the basis for regarding the stage as `critical.'" 388 U.S., at 239 (footnote omitted).
See, however, id., at 262 n. (opinion of Fortas, J.).
The Court of Appeals considered its analysis complete after it decided that a photographic display lacks scientific precision and ease of accurate reconstruction at trial. That analysis, under Wade, however, merely carries one to the point where one must establish that the trial itself can provide no substitute for counsel if a pretrial confrontation is conducted in the absence of counsel. Judge Friendly, writing for the Second Circuit in United States v. Bennett, 409 F.2d 888 (1969), recognized that the "criticality" test of Wade, if applied outside the confrontation context, would result in drastic expansion of the right to counsel:
"None of the classical analyses of the assistance to be given by counsel, Justice Sutherland's in Powell v. Alabama . . . and Justice Black's in Johnson v. *317 Zerbst . . . and Gideon v. Wainwright . . . suggests that counsel must be present when the prosecution is interrogating witnesses in the defendant's absence even when, as here, the defendant is under arrest; counsel is rather to be provided to prevent the defendant himself from falling into traps devised by a lawyer on the other side and to see to it that all available defenses are proffered. Many other aspects of the prosecution's interviews with a victim or a witness to a crime afford just as much opportunity for undue suggestion as the display of photographs; so, too, do the defense's interviews, notably with alibi witnesses." Id., at 899-900.
We now undertake the threshhold analysis that must be addressed.
IV
A substantial departure from the historical test would be necessary if the Sixth Amendment were interpreted to give Ash a right to counsel at the photographic identification in this case. Since the accused himself is not present at the time of the photographic display, and asserts no right to be present, Brief for Respondent 40, no possibility arises that the accused might be misled by his lack of familiarity with the law or overpowered by his professional adversary. Similarly, the counsel guarantee would not be used to produce equality in a trial-like adversary confrontation. Rather, the guarantee was used by the Court of Appeals to produce confrontation at an event that previously was not analogous to an adversary trial.
Even if we were willing to view the counsel guarantee in broad terms as a generalized protection of the adversary process, we would be unwilling to go so far as to extend the right to a portion of the prosecutor's trial-preparation interviews with witnesses. Although photography *318 is relatively new, the interviewing of witnesses before trial is a procedure that predates the Sixth Amendment. In England in the 16th and 17th centuries counsel regularly interviewed witnesses before trial. 9 W. Holdsworth, History of English Law 226-228 (1926). The traditional counterbalance in the American adversary system for these interviews arises from the equal ability of defense counsel to seek and interview witnesses himself.
That adversary mechanism remains as effective for a photographic display as for other parts of pretrial interviews.[10] No greater limitations are placed on defense counsel in constructing displays, seeking witnesses, and conducting photographic identifications than those applicable to the prosecution.[11] Selection of the picture of a person other than the accused, or the inability of a witness to make any selection, will be useful to the defense in precisely the same manner that the selection of *319 a picture of the defendant would be useful to the prosecution.[12] In this very case, for example, the initial tender of the photographic display was by Bailey's counsel, who sought to demonstrate that the witness had failed to make a photographic identification. Although we do not suggest that equality of access to photographs removes all potential for abuse,[13] it does remove any inequality in the adversary process itself and thereby fully satisfies the historical spirit of the Sixth Amendment's counsel guarantee.
The argument has been advanced that requiring counsel might compel the police to observe more scientific procedures or might encourage them to utilize corporeal rather than photographic displays.[14] This Court has *320 recognized that improved procedures can minimize the dangers of suggestion. Simmons v. United States, 390 U.S. 377, 386 n. 6 (1968). Commentators have also proposed more accurate techniques.[15]
Pretrial photographic identifications, however, are hardly unique in offering possibilities for the actions of the prosecutor unfairly to prejudice the accused. Evidence favorable to the accused may be withheld; testimony of witnesses may be manipulated; the results of laboratory tests may be contrived. In many ways the prosecutor, by accident or by design, may improperly subvert the trial. The primary safeguard against abuses of this kind is the ethical responsibility of the prosecutor,[16] who, as so often has been said, may "strike hard blows" but not "foul ones." Berger v. United States, 295 U.S. 78, 88 (1935); Brady v. Maryland, 373 U.S. 83, 87-88 (1963). If that safeguard fails, review remains available under due process standards. See Giglio v. United States, 405 U.S. 150 (1972); Mooney v. Holohan, 294 U.S. 103, 112 (1935); Miller v. Pate, 386 U.S. 1 (1967); Chambers v. Mississippi, 410 U.S. 284 (1973). These same safeguards apply to misuse of photographs. See Simmons v. United States, 390 U. S., at 384.
*321 We are not persuaded that the risks inherent in the use of photographic displays are so pernicious that an extraordinary system of safeguards is required.
We hold, then, that the Sixth Amendment does not grant the right to counsel at photographic displays conducted by the Government for the purpose of allowing a witness to attempt an identification of the offender. This holding requires reversal of the judgment of the Court of Appeals. Although respondent Ash has urged us to examine this photographic display under the due process standard enunciated in Simmons v. United States, 390 U. S., at 384, the Court of Appeals, expressing the view that additional findings would be necessary, refused to decide the issue. 149 U. S. App. D. C., at 7, 461 F.2d, at 98. We decline to consider this question on this record in the first instance. It remains open, of course, on the Court of Appeals' remand to the District Court.
Reversed and remanded.
MR. JUSTICE STEWART, concurring in the judgment. | In this case the Court is called upon to decide whether *301 the Sixth Amendment[1] grants an accused the right to have counsel present whenever the Government conducts a post-indictment photographic display, containing a picture of the accused, for the purpose of allowing a witness to attempt an identification of the offender. The United Court of Appeals for the District of Columbia Circuit, sitting en banc, held, by a 5-to-4 vote, that the accused possesses this right to counsel. 149 U. S. App. D. C. 1, The court's holding is inconsistent with decisions of the courts of appeals of nine other circuits.[2] We granted certiorari *302 to resolve the conflict and to decide this important constitutional question. We reverse and remand. I On the morning of August 26, 1965, a man with a stocking mask entered a bank in Washington, D. C., and began waving a pistol. He ordered an employee to hang up the telephone and instructed all others present not to move. Seconds later a second man, also wearing a stocking mask, entered the bank, scooped up money from tellers' drawers into a bag, and left. The gunman followed, and both men escaped through an alley. The robbery lasted three or four minutes. A Government informer, Clarence McFarland, told authorities that he had discussed the robbery with Charles J. Ash, Jr., the respondent here. Acting on this information, an FBI agent, in February 1966, showed five black-and-white mug shots of Negro males of generally the same age, height, and weight, one of which was of Ash, to four witnesses. All four made uncertain identifications of Ash's picture. At this time Ash was not in custody and had not been charged. On April 1, 1966, an indictment was returned charging Ash and a codefendant, John L. Bailey, in five counts related to this *303 bank robbery, in violation of D. C. Code Ann. 22-2901 and 18 U.S. C. 13 (a). Trial was finally set for May 1968, almost three years after the crime. In preparing for trial, the prosecutor decided to use a photographic display to determine whether the witnesses he planned to call would be able to make in-court identifications. Shortly before the trial, an FBI agent and the prosecutor showed five color photographs to the four witnesses who previously had tentatively identified the black-and-white photograph of Ash. Three of the witnesses selected the picture of Ash, but one was unable to make any selection. None of the witnesses selected the picture of Bailey which was in the group. This post-indictment[3] identification provides the basis for respondent Ash's claim that he was denied the right to counsel at a "critical stage" of the No motion for severance was made, and Ash and Bailey were tried jointly. The trial judge held a hearing on the suggestive nature of the pretrial photographic displays.[4] The judge did not make a clear ruling on suggestive nature, but held that the Government had demonstrated by "clear and convincing" evidence that in-court identifications would be "based on observation of *304 the suspect other than the intervening observation." App. 63-64. At trial, the three witnesses who had been inside the bank identified Ash as the gunman, but they were unwilling to state that they were certain of their identifications. None of these made an in-court identification of Bailey. The fourth witness, who had been in a car outside the bank and who had seen the fleeing robbers after they had removed their masks, made positive in-court identifications of both Ash and Bailey. Bailey's counsel then sought to impeach this in-court identification by calling the FBI agent who had shown the color photographs to the witnesses immediately before trial. Bailey's counsel demonstrated that the witness who had identified Bailey in court had failed to identify a color photograph of Bailey. During the course of the examination, Bailey's counsel also, before the jury, brought out the fact that this witness had selected another man as one of the robbers. At this point the prosecutor became concerned that the jury might believe that the witness had selected a third person when, in fact, the witness had selected a photograph of Ash. After a conference at the bench, the trial judge ruled that all five color photographs would be admitted into evidence. The Court of Appeals held that this constituted the introduction of a post-indictment identification at the prosecutor's request and over the objection of defense counsel.[5] *305 McFarland testified as a Government witness. He said he had discussed plans for the robbery with Ash before the event and, later, had discussed the results of the robbery with Ash in the presence of Bailey. McFarland was shown to possess an extensive criminal record and a history as an informer. The jury convicted Ash on all counts. It was unable to reach a verdict on the charges against Bailey, and his motion for acquittal was granted. Ash received concurrent sentences on the several counts, the two longest being 80 months to 12 years. The five-member majority of the Court of Appeals held that Ash's right to counsel, guaranteed by the Sixth Amendment, was violated when his attorney was not given the opportunity to be present at the photographic displays conducted in May 1968 before the trial. The majority relied on this Court's lineup cases, United and and on The majority did not reach the issue of suggestiveness; their opinion implies, however, that they would order a remand for additional findings by the District Court. 149 U. S. App. D. C., at The majority refrained from deciding whether the in-court identifications could have independent bases, at 14-15 and nn. 20, -106 and nn. 20, but expressed doubt that the identifications at the trial had independent origins. Dissenting opinions, joined by four judges, disagreed with the decision of the majority that the photographic identification was a "critical stage" requiring counsel, and criticized the majority's suggestion that the in-court identifications were tainted by defects in the photographic identifications. -134. *306 II The Court of Appeals relied exclusively on that portion of the Sixth Amendment providing, "In all criminal prosecutions, the accused shall enjoy the right to have the Assistance of Counsel for his defence." The right to counsel in Anglo-American law has a rich historical heritage, and this Court has regularly drawn on that history in construing the counsel guarantee of the Sixth Amendment. We re-examine that history in an effort to determine the relationship between the purposes of the Sixth Amendment guarantee and the risks of a photographic identification. In 28 U.S. 45, the Court discussed the English common-law rule that severely limited the right of a person accused of a felony to consult with counsel at trial. The Court examined colonial constitutions and statutes and noted that "in at least twelve of the thirteen colonies the rule of the English common law, in the respect now under consideration, had been definitely rejected and the right to counsel fully recognized in all criminal prosecutions, save that in one or two instances the right was limited to capital offenses or to the more serious crimes." The Sixth Amendment counsel guarantee, thus, was derived from colonial statutes and constitutional provisions designed to reject the English common-law rule. Apparently several concerns contributed to this rejection at the very time when countless other aspects of the common law were being imported. One consideration was the inherent irrationality of the English limitation. Since the rule was limited to felony proceedings, the result, absurd and illogical, was that an accused misdemeanant could rely fully on counsel, but *30 the accused felon, in theory at least,[6] could consult counsel only on legal questions that the accused proposed to the court. See 28 U. S., at 60. English writers were appropriately critical of this inconsistency. See, for example, 4 W. Blackstone, Commentaries *355. A concern of more lasting importance was the recognition and awareness that an unaided layman had little skill in arguing the law or in coping with an intricate procedural system. The function of counsel as a guide through complex legal technicalities long has been recognized by this Court. Mr. Justice Sutherland's well-known observations in Powell bear repeating here: "Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence." 28 U.S., at 69. The Court frequently has interpreted the Sixth Amendment *308 to assure that the "guiding hand of counsel" is available to those in need of its assistance. See, for example, 32 U.S. 335, and 40 U.S. 25, Another factor contributing to the colonial recognition of the accused's right to counsel was the adoption of the institution of the public prosecutor from the Continental inquisitorial system. One commentator has explained the effect of this development: "[E]arly in the eighteenth century the American system of judicial administration adopted an institution which was (and to some extent still is) unknown in England: while rejecting the fundamental juristic concepts upon which continental Europe's inquisitorial system of criminal procedure is predicated, the colonies borrowed one of its institutions, the public prosecutor, and grafted it upon the body of English (accusatorial) procedure embodied in the common law. Presumably, this innovation was brought about by the lack of lawyers, particularly in the newly settled regions, and by the increasing distances between the colonial capitals on the eastern seaboard and the ever-receding western frontier. Its result was that, at a time when virtually all but treason trials in England were still in the nature of suits between private parties, the accused in the colonies faced a government official whose specific function it was to prosecute, and who was incomparably more familiar than the accused with the problems of procedure, the idiosyncrasies of juries, and, last but not least, the personnel of the court." F. Heller, The Sixth Amendment 20- (1951) *309 Thus, an additional motivation for the American rule was a desire to minimize the imbalance in the adversary system that otherwise resulted with the creation of a professional prosecuting official. Mr. Justice Black, writing for the Court in spoke of this equalizing effect of the Sixth Amendment's counsel guarantee: "It embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel." This historical background suggests that the core purpose of the counsel guarantee was to assure "Assistance" at trial, when the accused was confronted with both the intricacies of the law and the advocacy of the public prosecutor.[] Later developments have led this Court *0 to recognize that "Assistance" would be less than meaningful if it were limited to the formal trial itself. This extension of the right to counsel to events before trial has resulted from changing patterns of criminal procedure and investigation that have tended to generate pretrial events that might appropriately be considered to be parts of the trial itself. At these newly emerging and significant events, the accused was confronted, just as at trial, by the procedural system, or by his expert adversary, or by both. In the Court explained the process of expanding the counsel guarantee to these confrontations: "When the Bill of Rights was adopted, there were no organized police forces as we know them today. The accused confronted the prosecutor and the witnesses against him, and the evidence was marshalled, largely at the trial itself. In contrast, today's law enforcement machinery involves critical confrontations of the accused by the prosecution at pretrial proceedings where the results might well settle the accused's fate and reduce the trial itself to a mere formality. In recognition of these realities of modern criminal prosecution, our cases have construed the Sixth Amendment guarantee to apply to `critical' *1 stages of the proceedings." The Court consistently has applied a historical interpretation of the guarantee, and has expanded the constitutional right to counsel only when new contexts appear presenting the same dangers that gave birth initially to the right itself. Recent cases demonstrate the historical method of this expansion. In Hamilton v. and in 33 U.S. 59 the accused was confronted with the procedural system and was required, with definite consequences, to enter a plea. In 3 U.S. 201 the accused was confronted by prosecuting authorities who obtained, by ruse and in the absence of defense counsel, incriminating statements. In Coleman v. (190), the accused was confronted by his adversary at a "critical stage" preliminary hearing at which the uncounseled accused could not hope to obtain so much benefit as could his skilled adversary. The analogy between the unrepresented accused at the pretrial confrontation and the unrepresented defendant at trial, implicit in the cases mentioned above, was explicitly drawn in : "The trial which might determine the accused's fate may well not be that in the courtroom but that at the pretrial confrontation, with the State aligned against the accused, the witness the sole jury, and the accused unprotected against the overreaching, intentional or unintentional, and with little or no effective appeal from the judgment there rendered by the witness`that's the man.'" -236. *2 Throughout this expansion of the counsel guarantee to trial-like confrontations, the function of the lawyer has remained essentially the same as his function at trial. In all cases considered by the Court, counsel has continued to act as a spokesman for, or advisor to, the accused. The accused's right to the "Assistance of Counsel" has meant just that, namely, the right of the accused to have counsel acting as his assistant. In Hamilton and White, for example, the Court envisioned the lawyer as advising the accused on available defenses in order to allow him to plead intelligently. -55; 33 U. S., at 60. In Massiah counsel could have advised his client on the benefits of the Fifth Amendment and could have sheltered him from the overreaching of the 3 U.S., at 205. Cf. In Coleman the skill of the lawyer in examining witnesses, probing for evidence, and making legal arguments was relied upon by the Court to demonstrate that, in the light of the purpose of the preliminary hearing under law, the accused required "Assistance" at that The function of counsel in rendering "Assistance" continued at the lineup under consideration in and its companion cases. Although the accused was not confronted there with legal questions, the lineup offered opportunities for prosecuting authorities to take advantage of the accused. Counsel was seen by the Court as being more sensitive to, and aware of, suggestive influences than the accused himself, and as better able to reconstruct the events at trial. Counsel present at lineup would be able to remove disabilities of the accused in precisely the same fashion that counsel compensated for the disabilities of the layman at trial. Thus, the Court mentioned that the accused's memory might be dimmed by "emotional tension," that the accused's credibility at *3 trial would be diminished by his status as defendant, and that the accused might be unable to present his version effectively without giving up his privilege against compulsory self-incrimination. United -2. It was in order to compensate for these deficiencies that the Court found the need for the assistance of counsel. This review of the history and expansion of the Sixth Amendment counsel guarantee demonstrates that the test utilized by the Court has called for examination of the event in order to determine whether the accused required aid in coping with legal problems or assistance in meeting his adversary. Against the background of this traditional test, we now consider the opinion of the Court of Appeals. III Although the Court of Appeals' majority recognized the argument that "a major purpose behind the right to counsel is to protect the defendant from errors that he himself might make if he appeared in court alone," the court concluded that "other forms of prejudice," mentioned and recognized in could also give rise to a right to counsel. 149 U. S. App. D. C., at 10, These forms of prejudice were felt by the court to flow from the possibilities for mistaken identification inherent in the photographic display.[8] *4 We conclude that the dangers of mistaken identification, mentioned in were removed from context by the Court of Appeals and were incorrectly utilized as a sufficient basis for requiring counsel. Although did discuss possibilities for suggestion and the difficulty for reconstructing suggestivity, this discussion occurred only after the Court had concluded that the lineup constituted a trial-like confrontation, requiring the "Assistance of Counsel" to preserve the adversary process by compensating for advantages of the prosecuting authorities. The above discussion of has shown that the traditional Sixth Amendment test easily allowed extension of counsel to a lineup. The similarity to trial was apparent, and counsel was needed to render "Assistance" in counterbalancing any "overreaching" by the After the Court in held that a lineup constituted a trial-like confrontation requiring counsel, a more difficult issue remained in the case for consideration. The same changes in law enforcement that led to lineups and pretrial hearings also generated other events at which the accused was confronted by the The Government had argued in that if counsel was required at a lineup, the same forceful considerations would mandate counsel at other preparatory steps in the "gathering of the prosecution's evidence," such as, for *5 particular example, the taking of fingerprints or blood samples. 3 U.S., at 22. The Court concluded that there were differences. Rather than distinguishing these situations from the lineup in terms of the need for counsel to assure an equal confrontation at the time, the Court recognized that there were times when the subsequent trial would cure a one-sided confrontation between prosecuting authorities and the uncounseled defendant. In other words, such stages were not "critical." Referring to fingerprints, hair, clothing, and other blood samples, the Court explained: "Knowledge of the techniques of science and technology is sufficiently available, and the variables in techniques few enough, that the accused has the opportunity for a meaningful confrontation of the Government's case at trial through the ordinary processes of cross-examination of the Government's expert witnesses and the presentation of the evidence of his own experts." 3 U.S., at 22-228. The structure of viewed in light of the careful limitation of the Court's language to "confrontations,"[9]*6 makes it clear that lack of scientific precision and inability to reconstruct an event are not the tests for requiring counsel in the first instance. These are, instead, the tests to determine whether confrontation with counsel at trial can serve as a substitute for counsel at the pretrial confrontation. If accurate reconstruction is possible, the risks inherent in any confrontation still remain, but the opportunity to cure defects at trial causes the confrontation to cease to be "critical." The opinion of the Court even indicated that changes in procedure might cause a lineup to cease to be a "critical" confrontation: "Legislative or other regulations, such as those of local police departments, which eliminate the risks of abuse and unintentional suggestion at lineup proceedings and the impediments to meaningful confrontation at trial may also remove the basis for regarding the stage as `critical.'" See, however, at 262 n. (opinion of Fortas, J.). The Court of Appeals considered its analysis complete after it decided that a photographic display lacks scientific precision and ease of accurate reconstruction at trial. That analysis, under however, merely carries one to the point where one must establish that the trial itself can provide no substitute for counsel if a pretrial confrontation is conducted in the absence of counsel. Judge Friendly, writing for the Second Circuit in United recognized that the "criticality" test of if applied outside the confrontation context, would result in drastic expansion of the right to counsel: "None of the classical analyses of the assistance to be given by counsel, Justice Sutherland's in and Justice Black's in Johnson v. * Zerbst and suggests that counsel must be present when the prosecution is interrogating witnesses in the defendant's absence even when, as here, the defendant is under arrest; counsel is rather to be provided to prevent the defendant himself from falling into traps devised by a lawyer on the other side and to see to it that all available defenses are proffered. Many other aspects of the prosecution's interviews with a victim or a witness to a crime afford just as much opportunity for undue suggestion as the display of photographs; so, too, do the defense's interviews, notably with alibi witnesses." We now undertake the threshhold analysis that must be addressed. IV A substantial departure from the historical test would be necessary if the Sixth Amendment were interpreted to give Ash a right to counsel at the photographic identification in this case. Since the accused himself is not present at the time of the photographic display, and asserts no right to be present, Brief for Respondent 40, no possibility arises that the accused might be misled by his lack of familiarity with the law or overpowered by his professional adversary. Similarly, the counsel guarantee would not be used to produce equality in a trial-like adversary confrontation. Rather, the guarantee was used by the Court of Appeals to produce confrontation at an event that previously was not analogous to an adversary trial. Even if we were willing to view the counsel guarantee in broad terms as a generalized protection of the adversary process, we would be unwilling to go so far as to extend the right to a portion of the prosecutor's trial-preparation interviews with witnesses. Although photography *8 is relatively new, the interviewing of witnesses before trial is a procedure that predates the Sixth Amendment. In England in the 16th and 1th centuries counsel regularly interviewed witnesses before trial. 9 W. Holdsworth, History of English Law 226-228 (1926). The traditional counterbalance in the American adversary system for these interviews arises from the equal ability of defense counsel to seek and interview witnesses himself. That adversary mechanism remains as effective for a photographic display as for other parts of pretrial interviews.[10] No greater limitations are placed on defense counsel in constructing displays, seeking witnesses, and conducting photographic identifications than those applicable to the [11] Selection of the picture of a person other than the accused, or the inability of a witness to make any selection, will be useful to the defense in precisely the same manner that the selection of *9 a picture of the defendant would be useful to the [12] In this very case, for example, the initial tender of the photographic display was by Bailey's counsel, who sought to demonstrate that the witness had failed to make a photographic identification. Although we do not suggest that equality of access to photographs removes all potential for abuse,[13] it does remove any inequality in the adversary process itself and thereby fully satisfies the historical spirit of the Sixth Amendment's counsel guarantee. The argument has been advanced that requiring counsel might compel the police to observe more scientific procedures or might encourage them to utilize corporeal rather than photographic displays.[14] This Court has *320 recognized that improved procedures can minimize the dangers of suggestion. 390 U.S. 3, Commentators have also proposed more accurate techniques.[15] Pretrial photographic identifications, however, are hardly unique in offering possibilities for the actions of the prosecutor unfairly to prejudice the accused. Evidence favorable to the accused may be withheld; testimony of witnesses may be manipulated; the results of laboratory tests may be contrived. In many ways the prosecutor, by accident or by design, may improperly subvert the trial. The primary safeguard against abuses of this kind is the ethical responsibility of the prosecutor,[16] who, as so often has been said, may "strike hard blows" but not "foul ones." 295 U.S. 8, ; 33 U.S. 83, 8- If that safeguard fails, review remains available under due process standards. See ; ; ; (193). These same safeguards apply to misuse of photographs. See *3 We are not persuaded that the risks inherent in the use of photographic displays are so pernicious that an extraordinary system of safeguards is required. We hold, then, that the Sixth Amendment does not grant the right to counsel at photographic displays conducted by the Government for the purpose of allowing a witness to attempt an identification of the offender. This holding requires reversal of the judgment of the Court of Appeals. Although respondent Ash has urged us to examine this photographic display under the due process standard enunciated in the Court of Appeals, expressing the view that additional findings would be necessary, refused to decide the issue. 149 U. S. App. D. C., at We decline to consider this question on this record in the first instance. It remains open, of course, on the Court of Appeals' remand to the District Court. Reversed and remanded. MR. JUSTICE STEWART, concurring in the judgment. |
Justice Rehnquist | majority | false | Duckworth v. Eagan | 1989-06-26T00:00:00 | null | https://www.courtlistener.com/opinion/112322/duckworth-v-eagan/ | https://www.courtlistener.com/api/rest/v3/clusters/112322/ | 1,989 | 1988-142 | 1 | 5 | 4 | Respondent confessed to stabbing a woman nine times after she refused to have sexual relations with him, and he was convicted of attempted murder. Before confessing, respondent was given warnings by the police, which included the advice that a lawyer would be appointed "if and when you go to court." The United States Court of Appeals for the Seventh Circuit held that such advice did not comply with the requirements of Miranda v. Arizona, 384 U.S. 436 (1966). We disagree and reverse.
Late on May 16, 1982, respondent contacted a Chicago police officer he knew to report that he had seen the naked body of a dead woman lying on a Lake Michigan beach. Respondent denied any involvement in criminal activity. He then took several Chicago police officers to the beach, where the woman was crying for help. When she saw respondent, the woman exclaimed: "Why did you stab me? Why did you stab me?" Respondent told the officers that he had been with the woman earlier that night, but that they had been attacked by several men who abducted the woman in a van.
The next morning, after realizing that the crime had been committed in Indiana, the Chicago police turned the investigation over to the Hammond, Indiana, Police Department. Respondent repeated to the Hammond police officers his story that he had been attacked on the lakefront, and that the woman had been abducted by several men. After he filled out a battery complaint at a local police station, respondent agreed to go to the Hammond police headquarters for further questioning.
At about 11 a.m., the Hammond police questioned respondent. Before doing so, the police read to respondent a waiver form, entitled "Voluntary Appearance; Advice of Rights," and they asked him to sign it. The form provided:
*198 "Before we ask you any questions, you must understand your rights. You have the right to remain silent. Anything you say can be used against you in court. You have a right to talk to a lawyer for advice before we ask you any questions, and to have him with you during questioning. You have this right to the advice and presence of a lawyer even if you cannot afford to hire one. We have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to court. If you wish to answer questions now without a lawyer present, you have the right to stop answering questions at any time. You also have the right to stop answering at any time until you've talked to a lawyer." 843 F.2d 1554, 1555-1556 (CA7 1988) (emphasis added).[1]
Respondent signed the form and repeated his exculpatory explanation for his activities of the previous evening.
Respondent was then placed in the "lockup" at the Hammond police headquarters. Some 29 hours later, at about 4 p.m. on May 18, the police again interviewed respondent. Before this questioning, one of the officers read the following waiver form to respondent:
"1. Before making this statement, I was advised that I have the right to remain silent and that anything I *199 might say may or will be used against me in a court of law.
"2. That I have the right to consult with an attorney of my own choice before saying anything, and that an attorney may be present while I am making any statement or throughout the course of any conversation with any police officer if I so choose.
"3. That I can stop and request an attorney at any time during the course of the taking of any statement or during the course of any such conversation.
"4. That in the course of any conversation I can refuse to answer any further questions and remain silent, thereby terminating the conversation.
"5. That if I do not hire an attorney, one will be provided for me." Id., at 1556.
Respondent read the form back to the officers and signed it. He proceeded to confess to stabbing the woman. The next morning, respondent led the officers to the Lake Michigan beach where they recovered the knife he had used in the stabbing and several items of clothing.
At trial, over respondent's objection, the state court admitted his confession, his first statement denying any involvement in the crime, the knife, and the clothing. The jury found respondent guilty of attempted murder, but acquitted him of rape. He was sentenced to 35 years' imprisonment. The conviction was upheld on appeal. Eagan v. State, 480 N.E.2d 946 (Ind. 1985).
Respondent sought a writ of habeas corpus in the United States District Court for the Northern District of Indiana, claiming, inter alia, that his confession was inadmissible because the first waiver form did not comply with Miranda. The District Court denied the petition, holding that the record "clearly manifests adherence to Miranda . . . especially *200 as to the so-called second statement." App. to Pet. for Cert. A52.
A divided United States Court of Appeals for the Seventh Circuit reversed. 843 F.2d 1554 (1988). The majority held that the advice that counsel would be appointed "if and when you go to court," which was included in the first warnings given to respondent, was "constitutionally defective because it denies an accused indigent a clear and unequivocal warning of the right to appointed counsel before any interrogation," and "link[s] an indigent's right to counsel before interrogation with a future event." Id., at 1557. The majority relied on the Seventh Circuit's decision in United States ex rel. Williams v. Twomey, 467 F.2d 1248, 1250 (1972), which had condemned, as "misleading and confusing," the inclusion of "if and when you go to court" language in Miranda warnings. Turning to the admissibility of respondent's confession, the majority thought that "as a result of the first warning, [respondent] arguably believed that he could not secure a lawyer during interrogation" and that the second warning "did not explicitly correct this misinformation." 843 F.2d, at 1558. It therefore remanded the case for a determination whether respondent had knowingly and intelligently waived his right to an attorney during the second interview. The dissenting judge rejected the majority's "formalistic, technical and unrealistic application of Miranda" and argued that the first warnings passed constitutional muster. Id., at 1562. In any case, he thought that remand was not necessary because the record indicated that this case was covered by Oregon v. Elstad, 470 U.S. 298 (1985). 843 F.2d, at 1570-1571.
The Court of Appeals denied rehearing en banc, with four judges dissenting from that order. App. to Pet. for Cert. A1-A2. We then granted certiorari, 488 U.S. 888 (1988), to resolve a conflict among the lower courts as to whether informing a suspect that an attorney would be appointed for him "if and when you go to court" renders Miranda warnings *201 inadequate.[2] We agree with the majority of the lower courts that it does not.[3]
In Miranda v. Arizona, 384 U.S. 436 (1966), the Court established certain procedural safeguards that require police to advise criminal suspects of their rights under the Fifth and Fourteenth Amendments before commencing custodial interrogation. In now-familiar words, the Court said that the *202 suspect must be told that "he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires." Id., at 479. The Court in Miranda "presumed that interrogation in certain custodial circumstances is inherently coercive and . . . that statements made under those circumstances are inadmissible unless the suspect is specifically warned of his Miranda rights and freely decides to forgo those rights." New York v. Quarles, 467 U.S. 649, 654 (1984) (footnote omitted).
We have never insisted that Miranda warnings be given in the exact form described in that decision.[4] In Miranda itself, the Court said that "[t]he warnings required and the waiver necessary in accordance with our opinion today are, in the absence of a fully effective equivalent, prerequisites to the admissibility of any statement made by a defendant." 384 U.S., at 476 (emphasis added). See also Rhode Island v. Innis, 446 U.S. 291, 297 (1980) (referring to "the now familiar Miranda warnings . . . or their equivalent"). In California v. Prysock, 453 U.S. 355 (1981) (per curiam), we stated that "the `rigidity' of Miranda [does not] exten[d] to the precise formulation of the warnings given a criminal defendant," and *203 that "no talismanic incantation [is] required to satisfy its strictures." Id., at 359.
Miranda has not been limited to station house questioning, see Rhode Island v. Innis, supra (police car), and the officer in the field may not always have access to printed Miranda warnings, or he may inadvertently depart from routine practice, particularly if a suspect requests an elaboration of the warnings. The prophylactic Miranda warnings are "not themselves rights protected by the Constitution but [are] instead measures to insure that the right against compulsory self-incrimination [is] protected." Michigan v. Tucker, 417 U.S. 433, 444 (1974). Reviewing courts therefore need not examine Miranda warnings as if construing a will or defining the terms of an easement. The inquiry is simply whether the warnings reasonably "conve[y] to [a suspect] his rights as required by Miranda." Prysock, supra, at 361.
We think the initial warnings given to respondent touched all of the bases required by Miranda. The police told respondent that he had the right to remain silent, that anything he said could be used against him in court, that he had the right to speak to an attorney before and during questioning, that he had "this right to the advice and presence of a lawyer even if [he could] not afford to hire one," and that he had the "right to stop answering at any time until [he] talked to a lawyer." 843 F.2d, at 1555-1556. As noted, the police also added that they could not provide respondent with a lawyer, but that one would be appointed "if and when you go to court." The Court of Appeals thought this "if and when you go to court" language suggested that "only those accused who can afford an attorney have the right to have one present before answering any questions," and "implie[d] that if the accused does not `go to court,' i. e.[,] the government does not file charges, the accused is not entitled to [counsel] at all." Id., at 1557.
In our view, the Court of Appeals misapprehended the effect of the inclusion of "if and when you go to court" language *204 in Miranda warnings. First, this instruction accurately described the procedure for the appointment of counsel in Indiana. Under Indiana law, counsel is appointed at the defendant's initial appearance in court, Ind. Code § 35-33-7-6 (1988), and formal charges must be filed at or before that hearing, § 35-33-7-3(a).[5] We think it must be relatively commonplace for a suspect, after receiving Miranda warnings, to ask when he will obtain counsel. The "if and when you go to court" advice simply anticipates that question.[6] Second, Miranda does not require that attorneys be producible on call, but only that the suspect be informed, as here, that he has the right to an attorney before and during questioning, and that an attorney would be appointed for him if he could not afford one.[7] The Court in Miranda emphasized that it was not suggesting that "each police station must have a `station house lawyer' present at all times to advise prisoners." 384 U.S., at 474. If the police cannot provide appointed counsel, Miranda requires only that the police not question a suspect unless he waives his right to counsel. Ibid. Here, respondent did just that.
Respondent relies, Brief for Respondent 24-29, on language in California v. Prysock, where we suggested that Miranda warnings would not be sufficient "if the reference to the right to appointed counsel was linked [to a] future point in time after the police interrogation." 453 U.S., at 360 (emphasis added). The Court of Appeals also referred to Prysock in finding deficient the initial warnings given to respondent. *205 843 F. 2d, at 1557. But the vice referred to in Prysock was that such warnings would not apprise the accused of his right to have an attorney present if he chose to answer questions. The warnings in this case did not suffer from that defect. Of the eight sentences in the initial warnings, one described respondent's right to counsel "before [the police] ask[ed] [him] questions," while another stated his right to "stop answering at any time until [he] talk[ed] to a lawyer." Id., at 1555-1556. We hold that the initial warnings given to respondent, in their totality, satisfied Miranda, and therefore that his first statement denying his involvement in the crime, as well as the knife and the clothing, was properly admitted into evidence.
The Court of Appeals thought it necessary to remand this case for consideration of whether respondent's second statement was tainted by the first warnings. Id., at 1557-1558. In view of our disposition of this case, we need not reach that question.[8] The judgment of the Court of Appeals is accordingly reversed, and the case is remanded for further proceedings consistent with our decision.
It is so ordered. | Respondent confessed to stabbing a woman nine times after she refused to have sexual relations with him, and he was convicted of attempted murder Before confessing, respondent was given warnings by the police, which included the advice that a lawyer would be appointed "if and when you go to court" The United States Court of Appeals for the Seventh Circuit held that such advice did not comply with the requirements of We disagree and reverse Late on May 16, 1982, respondent contacted a Chicago police officer he knew to report that he had seen the naked body of a dead woman lying on a Lake Michigan beach Respondent denied any involvement in criminal activity He then took several Chicago police officers to the beach, where the woman was crying for help When she saw respondent, the woman exclaimed: "Why did you stab me? Why did you stab me?" Respondent told the officers that he had been with the woman earlier that night, but that they had been attacked by several men who abducted the woman in a van The next morning, after realizing that the crime had been committed in Indiana, the Chicago police turned the investigation over to the Hammond, Indiana, Police Department Respondent repeated to the Hammond police officers his story that he had been attacked on the lakefront, and that the woman had been abducted by several men After he filled out a battery complaint at a local police station, respondent agreed to go to the Hammond police headquarters for further questioning At about 11 am, the Hammond police questioned respondent Before doing so, the police read to respondent a waiver form, entitled "Voluntary Appearance; Advice of Rights," and they asked him to sign it The form provided: *198 "Before we ask you any questions, you must understand your rights You have the right to remain silent Anything you say can be used against you in court You have a right to talk to a lawyer for advice before we ask you any questions, and to have him with you during questioning You have this right to the advice and presence of a lawyer even if you cannot afford to hire one We have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to court If you wish to answer questions now without a lawyer present, you have the right to stop answering questions at any time You also have the right to stop answering at any time until you've talked to a lawyer" [1] Respondent signed the form and repeated his exculpatory explanation for his activities of the previous evening Respondent was then placed in the "lockup" at the Hammond police headquarters Some 29 hours later, at about 4 pm on May 18, the police again interviewed respondent Before this questioning, one of the officers read the following waiver form to respondent: "1 Before making this statement, I was advised that I have the right to remain silent and that anything I *199 might say may or will be used against me in a court of law "2 That I have the right to consult with an attorney of my own choice before saying anything, and that an attorney may be present while I am making any statement or throughout the course of any conversation with any police officer if I so choose "3 That I can stop and request an attorney at any time during the course of the taking of any statement or during the course of any such conversation "4 That in the course of any conversation I can refuse to answer any further questions and remain silent, thereby terminating the conversation "5 That if I do not hire an attorney, one will be provided for me" Respondent read the form back to the officers and signed it He proceeded to confess to stabbing the woman The next morning, respondent led the officers to the Lake Michigan beach where they recovered the knife he had used in the stabbing and several items of clothing At trial, over respondent's objection, the state court admitted his confession, his first statement denying any involvement in the crime, the knife, and the clothing The jury found respondent guilty of attempted murder, but acquitted him of rape He was sentenced to 35 years' imprisonment The conviction was upheld on appeal Respondent sought a writ of habeas corpus in the United States District Court for the Northern District of Indiana, claiming, inter alia, that his confession was inadmissible because the first waiver form did not comply with Miranda The District Court denied the petition, holding that the record "clearly manifests adherence to Miranda especially *200 as to the so-called second statement" App to Pet for Cert A52 A divided United States Court of Appeals for the Seventh Circuit reversed The majority held that the advice that counsel would be appointed "if and when you go to court," which was included in the first warnings given to respondent, was "constitutionally defective because it denies an accused indigent a clear and unequivocal warning of the right to appointed counsel before any interrogation," and "link[s] an indigent's right to counsel before interrogation with a future event" The majority relied on the Seventh Circuit's decision in United States ex rel which had condemned, as "misleading and confusing," the inclusion of "if and when you go to court" language in Miranda warnings Turning to the admissibility of respondent's confession, the majority thought that "as a result of the first warning, [respondent] arguably believed that he could not secure a lawyer during interrogation" and that the second warning "did not explicitly correct this misinformation" It therefore remanded the case for a determination whether respondent had knowingly and intelligently waived his right to an attorney during the second interview The dissenting judge rejected the majority's "formalistic, technical and unrealistic application of Miranda" and argued that the first warnings passed constitutional muster In any case, he thought that remand was not necessary because the record indicated that this case was covered by -1571 The Court of Appeals denied rehearing en banc, with four judges dissenting from that order App to Pet for Cert A1-A2 We then granted certiorari, 488 US 888 to resolve a conflict among the lower courts as to whether informing a suspect that an attorney would be appointed for him "if and when you go to court" renders Miranda warnings *201 inadequate[2] We agree with the majority of the lower courts that it does not[3] In the Court established certain procedural safeguards that require police to advise criminal suspects of their rights under the Fifth and Fourteenth Amendments before commencing custodial interrogation In now-familiar words, the Court said that the *202 suspect must be told that "he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires" The Court in Miranda "presumed that interrogation in certain custodial circumstances is inherently coercive and that statements made under those circumstances are inadmissible unless the suspect is specifically warned of his Miranda rights and freely decides to forgo those rights" New York v Quarles, 467 US 649, We have never insisted that Miranda warnings be given in the exact form described in that decision[4] In Miranda itself, the Court said that "[t]he warnings required and the waiver necessary in accordance with our opinion today are, in the absence of a fully effective equivalent, prerequisites to the admissibility of any statement made by a defendant" 384 US, at 476 See also Rhode Island v 446 US 291, (referring to "the now familiar Miranda warnings or their equivalent") In California v 453 US 355 we stated that "the `rigidity' of Miranda [does not] exten[d] to the precise formulation of the warnings given a criminal defendant," and *203 that "no talismanic incantation [is] required to satisfy its strictures" Miranda has not been limited to station house questioning, see Rhode Island v and the officer in the field may not always have access to printed Miranda warnings, or he may inadvertently depart from routine practice, particularly if a suspect requests an elaboration of the warnings The prophylactic Miranda warnings are "not themselves rights protected by the Constitution but [are] instead measures to insure that the right against compulsory self-incrimination [is] protected" Michigan v Tucker, 417 US 433, Reviewing courts therefore need not examine Miranda warnings as if construing a will or defining the terms of an easement The inquiry is simply whether the warnings reasonably "conve[y] to [a suspect] his rights as required by Miranda" We think the initial warnings given to respondent touched all of the bases required by Miranda The police told respondent that he had the right to remain silent, that anything he said could be used against him in court, that he had the right to speak to an attorney before and during questioning, that he had "this right to the advice and presence of a lawyer even if [he could] not afford to hire one," and that he had the "right to stop answering at any time until [he] talked to a lawyer" 843 F2d, at As noted, the police also added that they could not provide respondent with a lawyer, but that one would be appointed "if and when you go to court" The Court of Appeals thought this "if and when you go to court" language suggested that "only those accused who can afford an attorney have the right to have one present before answering any questions," and "implie[d] that if the accused does not `go to court,' i e[,] the government does not file charges, the accused is not entitled to [counsel] at all" In our view, the Court of Appeals misapprehended the effect of the inclusion of "if and when you go to court" language *204 in Miranda warnings First, this instruction accurately described the procedure for the appointment of counsel in Indiana Under Indiana law, counsel is appointed at the defendant's initial appearance in court, Ind Code 35-33-7-6 and formal charges must be filed at or before that hearing, 35-33-7-3(a)[5] We think it must be relatively commonplace for a suspect, after receiving Miranda warnings, to ask when he will obtain counsel The "if and when you go to court" advice simply anticipates that question[6] Second, Miranda does not require that attorneys be producible on call, but only that the suspect be informed, as here, that he has the right to an attorney before and during questioning, and that an attorney would be appointed for him if he could not afford one[7] The Court in Miranda emphasized that it was not suggesting that "each police station must have a `station house lawyer' present at all times to advise prisoners" 384 US, at 474 If the police cannot provide appointed counsel, Miranda requires only that the police not question a suspect unless he waives his right to counsel Ibid Here, respondent did just that Respondent relies, Brief for Respondent 24-29, on language in California v where we suggested that Miranda warnings would not be sufficient "if the reference to the right to appointed counsel was linked [to a] future point in time after the police interrogation" 453 US, at 360 The Court of Appeals also referred to in finding deficient the initial warnings given to respondent *205 843 F 2d, But the vice referred to in was that such warnings would not apprise the accused of his right to have an attorney present if he chose to answer questions The warnings in this case did not suffer from that defect Of the eight sentences in the initial warnings, one described respondent's right to counsel "before [the police] ask[ed] [him] questions," while another stated his right to "stop answering at any time until [he] talk[ed] to a lawyer" at We hold that the initial warnings given to respondent, in their totality, satisfied Miranda, and therefore that his first statement denying his involvement in the crime, as well as the knife and the clothing, was properly admitted into evidence The Court of Appeals thought it necessary to remand this case for consideration of whether respondent's second statement was tainted by the first warnings -1558 In view of our disposition of this case, we need not reach that question[8] The judgment of the Court of Appeals is accordingly reversed, and the case is remanded for further proceedings consistent with our decision It is so ordered |
Justice Blackmun | majority | false | Richardson v. Perales | 1971-05-03T00:00:00 | null | https://www.courtlistener.com/opinion/108333/richardson-v-perales/ | https://www.courtlistener.com/api/rest/v3/clusters/108333/ | 1,971 | 1970-098 | 1 | 6 | 3 | In 1966 Pedro Perales, a San Antonio truck driver, then aged 34, height 5' 11", weight about 220 pounds, filed a claim for disability insurance benefits under the Social Security Act. Sections 216 (i) (1), 68 Stat. 1080, and 223 (d) (1), 81 Stat. 868, of that Act, 42 U.S. C. § 416 (i) (1) and 42 U.S. C. § 423 (d) (1) (1964 ed., Supp. V), both provide that the term "disability" means "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . ."[1] Section 205 (g), 42 U.S. C. § 405 (g), relating to judicial review, states, "The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive . . . ."
The issue here is whether physicians' written reports of medical examinations they have made of a disability claimant may constitute "substantial evidence" supportive of a finding of nondisability, within the § 205 (g) standard, when the claimant objects to the admissibility of those reports and when the only live testimony is presented by his side and is contrary to the reports.
I
In his claim Perales asserted that on September 29, 1965, he became disabled as a result of an injury to his back sustained in lifting an object at work. He was seen by a neurosurgeon, Dr. Ralph A. Munslow, who first recommended conservative treatment. When this provided no relief, myelography was performed and surgery for a possible protruded intervertebral disc at L-5 was advised. The patient at first hesitated about surgery *391 and appeared to improve. On recurrence of pain, however, he consented to the recommended procedure. Dr. Munslow operated on November 23. The surgical note is in the margin.[2] No disc protrusion or other definitive pathology was identified at surgery. The post-operative diagnosis was: "Nerve root compression syndrome, left." The patient was discharged from Dr. Munslow's care on January 25, 1966, with a final diagnosis of "Neuritis, lumbar, mild."
Mr. Perales continued to complain, but Dr. Munslow and Dr. Morris H. Lampert, a neurologist called in consultation, were still unable to find any objective neurological explanation for his complaints. Dr. Munslow advised that he return to work.
In April 1966 Perales consulted Dr. Max Morales, Jr., a general practitioner of San Antonio. Dr. Morales hospitalized the patient from April 15 to May 2. His final *392 discharge diagnosis was: "Back sprain, lumbo-sacral spine."
Perales then filed his claim. As required by § 221 of the Act, 42 U.S. C. § 421, the claim was referred to the state agency for determination. The agency obtained the hospital records and a report from Dr. Morales. The report set forth no physical findings or laboratory studies, but the doctor again gave as his diagnosis: "Back sprainlumbo-sacral spine," this time "moderately severe," with "Ruptured disk not ruled out." The agency arranged for a medical examination, at no cost to the patient, by Dr. John H. Langston, an orthopedic surgeon. This was done May 25.
Dr. Langston's ensuing report to the Division of Disability Determination was devastating from the claimant's standpoint. The doctor referred to Perales' being "on crutches or cane" since his injury. He noted a slightly edematous condition in the legs, attributed to "inactivity and sitting around"; slight tenderness in some of the muscles of the dorsal spine, thought to be due to poor posture; and "a very mild sprain [of those muscles] which would resolve were he actually to get a little exercise and move." Apart from this, and from the residuals of the pantopaque myelography and hemilaminectomy, Dr. Langston found no abnormalities of the lumbar spine. Otherwise, he described Perales as a "big physical healthy specimen . . . obviously holding back and limiting all of his motions, intentionally. . . . His upper extremities, though they are completely uninvolved by his injury, he holds very rigidly as though he were semi-paralyzed. His reach and grasp are very limited but intentionally so. . . . Neurological examination is entirely normal to detailed sensory examination with pin-wheel, vibratory sensations, and light touch. Reflexes are very active and there is no atrophy anywhere." The *393 orthopedist's summarization, impression, and prognosis are in the margin.[3]
The state agency denied the claim. Perales requested reconsideration. Dr. Morales submitted a further report to the agency and an opinion to the claimant's attorney. This outlined the surgery and hospitalizations and his own conservative and continuing treatment of the patient, the medicines prescribed, the administration of ultrasound therapy, and the patient's constant complaints. The doctor concluded that the patient had not made a complete recovery from his surgery, that he was not malingering, that his injury was permanent, and that he was totally and permanently disabled.[4] He recommended against any further surgery.
*394 The state agency then arranged for an examination by Dr. James M. Bailey, a board-certified psychiatrist with a subspecialty in neurology. Dr. Bailey's report to the agency on August 30, 1966, concluded with the following diagnosis:
"Paranoid personality, manifested by hostility, feelings of persecution and long history of strained interpersonal relationships.
"I do not feel that this patient has a separate psychiatric illness at this time. It appears that his personality is conducive to anger, frustrations, etc."
The agency again reviewed the file. The Bureau of Disability Insurance of the Social Security Administration made its independent review. The report and opinion of Dr. Morales, as the claimant's attending physician, were considered, as were those of the other examining physicians. The claim was again denied.
Perales requested a hearing before a hearing examiner. The agency then referred the claimant to Dr. Langston and to Dr. Richard H. Mattson for electromyography studies. Dr. Mattson's notes referred to "some chronic or past disturbance of function in the nerve supply" to the left and right anterior tibialis muscles and right *395 extensor digitorium brevis muscles that was "strongly suggestive of lack of maximal effort" and was "the kind of finding that is typically associated with a functional or psychogenic component to weakness." There was no evidence of "any active process effecting [sic] the nerves at present." Dr. Langston advised the agency that Dr. Mattson's finding of "very poor effort" verified what Dr. Langston had found on the earlier physical examination.
The requested hearing was set for January 12, 1967, in San Antonio. Written notice thereof was given the claimant with a copy to his attorney. The notice contained a definition of disability, advised the claimant that he should bring all medical and other evidence not already presented, afforded him an opportunity to examine all documentary evidence on file prior to the hearing, and told him that he might bring his own physician or other witnesses and be represented at the hearing by a lawyer.
The hearing took place at the time designated. A supplemental hearing was held March 31. The claimant appeared at the first hearing with his attorney and with Dr. Morales. The attorney formally objected to the introduction of the several reports of Drs. Langston, Bailey, Mattson, and Lampert, and of the hospital records. Various grounds of objection were asserted, including hearsay, absence of an opportunity for cross-examination, absence of proof the physicians were licensed to practice in Texas, failure to demonstrate that the hospital records were proved under the Business Records Act, and the conclusory nature of the reports. These objections were overruled and the reports and hospital records were introduced. The reports of Dr. Morales and of Dr. Munslow were then submitted by the claimant's counsel and admitted.
At the two hearings oral testimony was submitted by claimant Perales, by Dr. Morales, by a former fellow *396 employee of the claimant, by a vocational expert, and by Dr. Lewis A. Leavitt, a physician board-certified in physical medicine and rehabilitation, and chief of, and professor in, the Department of Physical Medicine at Baylor University College of Medicine. Dr. Leavitt was called by the hearing examiner as an independent "medical adviser," that is, as an expert who does not examine the claimant but who hears and reviews the medical evidence and who may offer an opinion. The adviser is paid a fee by the Government. The claimant, through his counsel, objected to any testimony by Dr. Leavitt not based upon examination or upon a hypothetical. Dr. Leavitt testified over this objection and was cross-examined by the claimant's attorney. He stated that the consensus of the various medical reports was that Perales had a mild low-back syndrome of musculo-ligamentous origin.
The hearing examiner, in reliance upon the several medical reports and the testimony of Dr. Leavitt, observed in his written decision, "There is objective medical evidence of impairment which the heavy preponderance of the evidence indicates to be of mild severity . . . . Taken altogether, the Hearing Examiner is of the conclusion that the claimant has not met the burden of proof." He specifically found that the claimant "is suffering from a low back syndrome of musculo-ligamentous origin, and of mild severity"; that while he "has an emotional overlay to his medical impairment it does not require psychiatric treatment and is of minimal contribution, if any, to his medical impairment or to his general ability to engage in substantial gainful activity"; that "[n]either his medical impairment nor his emotional overlay, singly or in combination, constitute a disability as defined" in the Act; and that the claimant is capable of engaging as a salesman in work in which he had previously engaged, of working as a watchman or *397 guard where strenuous activity is not required, or as a ticket-taker or janitor. The hearing examiner's decision, then, was that the claimant was not entitled to a period of disability or to disability insurance benefits.
It is to be noted at this point that § 205 (d) of the Act, 42 U.S. C. § 405 (d), provides that the Secretary has power to issue subpoenas requiring the attendance and testimony of witnesses and the production of evidence and that the Secretary's regulations, authorized by § 205 (a), 42 U.S. C. § 405 (a), provide that a claimant may request the issuance of subpoenas, 20 CFR § 404.926. Perales, however, who was represented by counsel, did not request subpoenas for either of the two hearings.
The claimant then made a request for review by the Appeals Council and submitted as supplemental evidence a judgment dated June 2, 1967, in Perales' favor against an insurance company for workmen's compensation benefits aggregating $11,665.84, plus medical and related expenses, and a medical report letter dated December 28, 1966, by Dr. Coyle W. Williams, apparently written in support of a welfare claim made by Perales. In his letter the doctor noted an essentially negative neurological and physical examination except for tenderness in the lumbar area and limited straight leg raising. He observed, "I cannot explain all his symptoms on a physical basis. I would recommend he would re-condition himself and return to work. My estimation, he has a 15% permanent partial disability the body as a whole." The Appeals Council ruled that the decision of the hearing examiner was correct.
Upon this adverse ruling the claimant instituted the present action for review pursuant to § 205 (g). Each side moved for summary judgment on the administrative transcript. The District Court stated that it was reluctant to accept as substantial evidence the opinions of medical *398 experts submitted in the form of unsworn written reports, the admission of which would have the effect of denying the opposition an opportunity for cross-examination; that the opinion of a doctor who had never examined the claimant is entitled to little or no probative value, especially when opposed by substantial evidence including the oral testimony of an examining physician; and that what was before the court amounted to hearsay upon hearsay. The case was remanded for a new hearing before a different examiner. Perales v. Secretary, 288 F. Supp. 313 (WD Tex. 1968). On appeal the Fifth Circuit noted the absence of any request by the claimant for subpoenas and held that, having this right and not exercising it, he was not in a position to complain that he had been denied the rights of confrontation and of cross-examination. It held that the hearsay evidence in the case was admissible under the Act; that, specifically, the written reports of the physicians were admissible in the administrative hearing; that Dr. Leavitt's testimony also was admissible; but that all this evidence together did not constitute substantial evidence when it was objected to and when it was contradicted by evidence from the only live witnesses. Cohen v. Perales, 412 F.2d 44 (1969).
On rehearing, the Court of Appeals observed that it did not mean by its opinion that uncorroborated hearsay could never be substantial evidence supportive of a hearing examiner's decision adverse to a claimant. It emphasized that its ruling that uncorroborated hearsay could not constitute substantial evidence was applicable only when the claimant had objected and when the hearsay was directly contradicted by the testimony of live medical witnesses and by the claimant in person. Cohen v. Perales, 416 F.2d 1250 (1969). Certiorari was granted in order to review and resolve this important procedural due process issue. 397 U.S. 1035 (1970).
*399 II
We therefore are presented with the not uncommon situation of conflicting medical evidence. The trier of fact has the duty to resolve that conflict. We have, on the one hand, an absence of objective findings, an expressed suspicion of only functional complaints, of malingering, and of the patient's unwillingness to do anything about remedying an unprovable situation. We have, on the other hand, the claimant's and his personal physician's earnest pleas that significant and disabling residuals from the mishap of September 1965 are indeed present.
The issue revolves, however, around a system which produces a mass of medical evidence in report form. May material of that kind ever be "substantial evidence" when it stands alone and is opposed by live medical evidence and the client's own contrary personal testimony? The courts below have held that it may not.
III
The Social Security Act has been with us since 1935. Act of August 14, 1935, 49 Stat. 620. It affects nearly all of us. The system's administrative structure and procedures, with essential determinations numbering into the millions, are of a size and extent difficult to comprehend. But, as the Government's brief here accurately pronounces, "Such a system must be fairand it must work."[5]
Congress has provided that the Secretary
"shall have full power and authority to make rules and regulations and to establish procedures . . . necessary or appropriate to carry out such provisions, and shall adopt reasonable and proper rules and *400 regulations to regulate and provide for the nature and extent of the proofs and evidence and the method of taking and furnishing the same in order to establish the right to benefits hereunder." § 205 (a), 42 U.S. C. § 405 (a).
Section 205 (b) directs the Secretary to make findings and decisions; on request to give reasonable notice and opportunity for a hearing; and in the course of any hearing to receive evidence. It then provides:
"Evidence may be received at any hearing before the Secretary even though inadmissible under rules of evidence applicable to court procedure."
In carrying out these statutory duties the Secretary has adopted regulations that state, among other things:
"The hearing examiner shall inquire fully into the matters at issue and shall receive in evidence the testimony of witnesses and any documents which are relevant and material to such matters. . . . The . . . procedure at the hearing generally . . . shall be in the discretion of the hearing examiner and of such nature as to afford the parties a reasonable opportunity for a fair hearing." 20 CFR § 404.927.
From this it is apparent that (a) the Congress granted the Secretary the power by regulation to establish hearing procedures; (b) strict rules of evidence, applicable in the courtroom, are not to operate at social security hearings so as to bar the admission of evidence otherwise pertinent; and (c) the conduct of the hearing rests generally in the examiner's discretion. There emerges an emphasis upon the informal rather than the formal. This, we think, is as it should be, for this administrative procedure, and these hearings, should be understandable to the layman claimant, should not necessarily be stiff and comfortable only for the trained attorney, and should *401 be liberal and not strict in tone and operation. This is the obvious intent of Congress so long as the procedures are fundamentally fair.
IV
With this background and this atmosphere in mind, we turn to the statutory standard of "substantial evidence" prescribed by § 205 (g). The Court has considered this very concept in other, yet similar, contexts. The National Labor Relations Act, § 10 (e), in its original form, provided that the NLRB's findings of fact "if supported by evidence, shall be conclusive." 49 Stat. 454. The Court said this meant "supported by substantial evidence" and that this was
"more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938).
The Court has adhered to that definition in varying statutory situations. See NLRB v. Columbian Enameling & Stamping Co., 306 U.S. 292, 300 (1939); Universal Camera Corp. v. NLRB, 340 U.S. 474, 477-487 (1951); Consolo v. Federal Maritime Comm'n, 383 U.S. 607, 619-620 (1966).
V
We may accept the propositions advanced by the claimant, some of them long established, that procedural due process is applicable to the adjudicative administrative proceeding involving "the differing rules of fair play, which through the years, have become associated with differing types of proceedings," Hannah v. Larche, 363 U.S. 420, 442 (1960); that "the `right' to Social Security benefits is in one sense `earned,' " Flemming v. Nestor, 363 U.S. 603, 610 (1960); and that the
"extent to which procedural due process must be afforded the recipient is influenced by the extent to *402 which he may be `condemned to suffer grievous loss' . . . . Accordingly . . . `consideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action.' " Goldberg v. Kelly, 397 U.S. 254, 262-263 (1970).
The question, then, is as to what procedural due process requires with respect to examining physicians' reports in a social security disability claim hearing.
We conclude that a written report by a licensed physician who has examined the claimant and who sets forth in his report his medical findings in his area of competence may be received as evidence in a disability hearing and, despite its hearsay character and an absence of cross-examination, and despite the presence of opposing direct medical testimony and testimony by the claimant himself, may constitute substantial evidence supportive of a finding by the hearing examiner adverse to the claimant, when the claimant has not exercised his right to subpoena the reporting physician and thereby provide himself with the opportunity for cross-examination of the physician.
We are prompted to this conclusion by a number of factors that, we feel, assure underlying reliability and probative value:
1. The identity of the five reporting physicians is significant. Each report presented here was prepared by a practicing physician who had examined the claimant.[6] A majority (Drs. Langston, Bailey, and Mattson) were *403 called into the case by the state agency. Although each received a fee, that fee is recompense for his time and talent otherwise devoted to private practice or other professional assignment. We cannot, and do not, ascribe bias to the work of these independent physicians, or any interest on their part in the outcome of the administrative proceeding beyond the professional curiosity a dedicated medical man possesses.
2. The vast workings of the social security administrative system make for reliability and impartiality in the consultant reports. We bear in mind that the agency operates essentially, and is intended so to do, as an adjudicator and not as an advocate or adversary. This is the congressional plan. We do not presume on this record to say that it works unfairly.[7]
3. One familiar with medical reports and the routine of the medical examination, general or specific, will recognize their elements of detail and of value. The particular reports of the physicians who examined claimant Perales were based on personal consultation and personal examination and rested on accepted medical procedures and tests. The operating neurosurgeon, Dr. Munslow, provided his pre-operative observations and diagnosis, his findings at surgery, his post-operative diagnosis, and his post-operative observations. Dr. Lampert, the neurologist, provided the history related to him by the patient, Perales' complaints, the physical examination and neurologic tests, and his professional impressions and recommendations. Dr. Langston, the orthopedist, did the same post-operatively, and described the orthopedic tests and *404 neurologic examination he performed, the results and his impressions and prognosis. Dr. Mattson, who did the post-operative electromyography, described the results of that test, and his impressions. And Dr. Bailey, the psychiatrist, related the history, the patient's complaints, and the psychiatric diagnosis that emerged from the typical psychiatric examination.
These are routine, standard, and unbiased medical reports by physician specialists concerning a subject whom they had seen. That the reports were adverse to Perales' claim is not in itself bias or an indication of nonprobative character.
4. The reports present the impressive range of examination to which Perales was subjected. A specialist in neurosurgery, one in neurology, one in psychiatry, one in orthopedics, and one in physical medicine and rehabilitation add up to definitive opinion in five medical specialties, all somewhat related, but different in their emphases. It is fair to say that the claimant received professional examination and opinion on a scale beyond the reach of most persons and that this case reveals a patient and careful endeavor by the state agency and the examiner to ascertain the truth.
5. So far as we can detect, there is no inconsistency whatsoever in the reports of the five specialists. Yet each result was reached by independent examination in the writer's field of specialized training.
6. Although the claimant complains of the lack of opportunity to cross-examine the reporting physicians, he did not take advantage of the opportunity afforded him under 20 CFR § 404.926 to request subpoenas for the physicians. The five-day period specified by the regulation for the issuance of the subpoenas surely afforded no real obstacle to this, for he was notified that the documentary evidence on file was available for examination before the hearing and, further, a supplemental *405 hearing could be requested. In fact, in this very case there was a supplemental hearing more than two and a half months after the initial hearings. This inaction on the claimant's part supports the Court of Appeals' view, 412 F.2d, at 50-51, that the claimant as a consequence is to be precluded from now complaining that he was denied the rights of confrontation and cross-examination.
7. Courts have recognized the reliability and probative worth of written medical reports even in formal trials and, while acknowledging their hearsay character, have admitted them as an exception to the hearsay rule. Notable is Judge Parker's well-known ruling in the warrisk insurance case of Long v. United States, 59 F.2d 602, 603-604 (CA4 1932), which deserves quotation here, but which, because of its length, we do not reproduce. The Second Circuit has made a like ruling in White v. Zutell, 263 F.2d 613, 615 (1959), and in so doing, relied on the Business Records Act, 28 U.S. C. § 1732.
8. Past treatment by reviewing courts of written medical reports in social security disability cases is revealing. Until the decision in this case, the courts of appeals, including the Fifth Circuit, with only an occasional criticism of the medical report practice,[8] uniformly recognized reliability and probative value in such reports. The courts have reviewed administrative determinations, and upheld many adverse ones, where the only supporting evidence has been reports of this kind, buttressed sometimes, but often not, by testimony of a medical adviser such as Dr. Leavitt.[9] In these cases admissibility was *406 not contested, but the decisions do demonstrate traditional and ready acceptance of the written medical report in social security disability cases.
9. There is an additional and pragmatic factor which, although not controlling, deserves mention. This is what Chief Judge Brown has described as "[t]he sheer magnitude of that administrative burden," and the resulting necessity for written reports without "elaboration through the traditional facility of oral testimony." Page v. Celebrezze, 311 F.2d 757, 760 (CA5 1963). With over 20,000 disability claim hearings annually, the cost of providing live medical testimony at those hearings, where need has not been demonstrated by a request for a subpoena, over and above the cost of the examinations requested by hearing examiners, would be a substantial drain on the trust fund and on the energy of physicians already in short supply.
VI
1. Perales relies heavily on the Court's holding and statements in Goldberg v. Kelly, supra, particularly the comment that due process requires notice "and an effective opportunity to defend by confronting any adverse witnesses . . . ." 397 U.S., at 267-268. Kelly, however, *407 had to do with termination of AFDC benefits without prior notice. It also concerned a situation, the Court said, "where credibility and veracity are at issue, as they must be in many termination proceedings." 397 U.S., at 269.
The Perales proceeding is not the same. We are not concerned with termination of disability benefits once granted. Neither are we concerned with a change of status without notice. Notice was given to claimant Perales. The physicians' reports were on file and available for inspection by the claimant and his counsel. And the authors of those reports were known and were subject to subpoena and to the very cross-examination that the claimant asserts he has not enjoyed. Further, the specter of questionable credibility and veracity is not present; there is professional disagreement with the medical conclusions, to be sure, but there is no attack here upon the doctors' credibility or veracity. Kelly affords little comfort to the claimant.
2. Perales also, as the Court of Appeals stated, 412 F.2d, at 53, 416 F. 2d, at 1251, would describe the medical reports in question as "mere uncorroborated hearsay" and would relate this to Mr. Chief Justice Hughes' sentence in Consolidated Edison Co. v. NLRB, 305 U. S., at 230: "Mere uncorroborated hearsay or rumor does not constitute substantial evidence."
Although the reports are hearsay in the technical sense, because their content is not produced live before the hearing examiner, we feel that the claimant and the Court of Appeals read too much into the single sentence from Consolidated Edison. The contrast the Chief Justice was drawing, at the very page cited, was not with material that would be deemed formally inadmissible in judicial proceedings but with material "without a basis in evidence having rational probative force." This was not a blanket rejection by the Court of administrative *408 reliance on hearsay irrespective of reliability and probative value. The opposite was the case.
3. The claimant, the District Court, and the Court of Appeals also criticize the use of Dr. Leavitt as a medical adviser. 288 F. Supp., at 314, 412 F. 2d, at 53-54. See also Mefford v. Gardner, 383 F.2d 748, 759-761 (CA6 1967). Inasmuch as medical advisers are used in approximately 13% of disability claim hearings, comment as to this practice is indicated. We see nothing "reprehensible" in the practice, as the claimant would describe it. The trial examiner is a layman; the medical adviser is a board-certified specialist. He is used primarily in complex cases for explanation of medical problems in terms understandable to the layman-examiner. He is a neutral adviser. This particular record discloses that Dr. Leavitt explained the technique and significance of electromyography. He did offer his own opinion on the claimant's condition. That opinion, however, did not differ from the medical reports. Dr. Leavitt did not vouch for the accuracy of the facts assumed in the reports. No one understood otherwise. See Doe v. Department of Transportation, 412 F.2d 674, 678-680 (CA8 1969). We see nothing unconstitutional or improper in the medical adviser concept and in the presence of Dr. Leavitt in this administrative hearing.
4. Finally, the claimant complains of the system of processing disability claims. He suggests, and is joined in this by the briefs of amici, that the Administrative Procedure Act, rather than the Social Security Act, governs the processing of claims and specifically provides for cross-examination, 5 U.S. C. § 556 (d) (1964 ed., Supp. V). The claimant goes on to assert that in any event the hearing procedure is invalid on due process grounds. He says that the hearing examiner has the responsibility for gathering the evidence and "to make the *409 Government's case as strong as possible"; that naturally he leans toward a decision in favor of the evidence he has gathered; that justice must satisfy the appearance of justice, citing Offutt v. United States, 348 U.S. 11, 14 (1954), and In re Murchison, 349 U.S. 133, 136 (1955); and that an "independent hearing examiner such as in the" Longshoremen's and Harbor Workers' Compensation Act should be provided.
We need not decide whether the APA has general application to social security disability claims, for the social security administrative procedure does not vary from that prescribed by the APA. Indeed, the latter is modeled upon the Social Security Act. See Final Report of the Attorney General's Committee on Administrative Procedure, contained in Administrative Procedure in Government Agencies, S. Doc. No. 8, 77th Cong., 1st Sess., 157 (1941); see also the remarks of Senator McCarran, chairman of the Judiciary Committee of the Senate, 92 Cong. Rec. 2155. The cited § 556 (d) provides that any documentary evidence "may be received" subject to the exclusion of the irrelevant, the immaterial, and the unduly repetitious. It further provides that a "party is entitled to present his case or defense by oral or documentary evidence . . . and to conduct such cross-examination as may be required for a full and true disclosure of the facts" and in "determining claims for money or benefits . . . an agency may, when a party will not be prejudiced thereby, adopt procedures for the submission of all or part of the evidence in written form."
These provisions conform, and are consistent with, rather than differ from or supersede, the authority given the Secretary by the Social Security Act's §§ 205 (a) and (b) "to establish procedures," and "to regulate and provide for the nature and extent of the proofs and evidence and the method of taking and furnishing the same in *410 order to establish the right to benefits," and to receive evidence "even though inadmissible under rules of evidence applicable to court procedure." Hearsay, under either Act, is thus admissible up to the point of relevancy.
The matter comes down to the question of the procedure's integrity and fundamental fairness. We see nothing that works in derogation of that integrity and of that fairness in the admission of consultants' reports, subject as they are to being material and to the use of the subpoena and consequent cross-examination. This precisely fits the statutorily prescribed "cross-examination as may be required for a full and true disclosure of the facts." That is the standard. It is clear and workable and does not fall short of procedural due process.
Neither are we persuaded by the advocate-judge-multiple-hat suggestion. It assumes too much and would bring down too many procedures designed, and working well, for a governmental structure of great and growing complexity. The social security hearing examiner, furthermore, does not act as counsel. He acts as an examiner charged with developing the facts. The 44.2% reversal rate for all federal disability hearings in cases where the state agency does not grant benefits, M. Rock, An Evaluation of the SSA Appeals Process, Report No. 7, U. S. Department of HEW, p. 9 (1970), attests to the fairness of the system and refutes the implication of impropriety.
We therefore reverse and remand for further proceedings. We intimate no view as to the merits. It is for the District Court now to determine whether the Secretary's findings, in the light of all material proffered and admissible, are supported by "substantial evidence" within the command of § 205 (g).
It is so ordered.
*411 MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK and MR. | In 1966 Pedro Perales, a San Antonio truck driver, then aged 34, height 5' 11", weight about 220 pounds, filed a claim for disability insurance benefits under the Social Security Act. Sections 216 (i) (1), and 223 (d) (1), of that Act, 42 U.S. C. 416 (i) (1) and 42 U.S. C. 423 (d) (1) (1964 ed., Supp. V), both provide that the term "disability" means "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which"[1] Section 205 (g), 42 U.S. C. 405 (g), relating to judicial review, states, "The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive" The issue here is whether physicians' written reports of medical examinations they have made of a disability claimant may constitute "substantial evidence" supportive of a finding of nondisability, within the 205 (g) standard, when the claimant objects to the admissibility of those reports and when the only live testimony is presented by his side and is contrary to the reports. I In his claim Perales asserted that on September 29, 1965, he became disabled as a result of an injury to his back sustained in lifting an object at work. He was seen by a neurosurgeon, Dr. Ralph A. Munslow, who first recommended conservative treatment. When this provided no relief, myelography was performed and surgery for a possible protruded intervertebral disc at L-5 was advised. The patient at first hesitated about surgery *391 and appeared to improve. On recurrence of pain, however, he consented to the recommended procedure. Dr. Munslow operated on November 23. The surgical note is in the margin.[2] No disc protrusion or other definitive pathology was identified at surgery. The post-operative diagnosis was: "Nerve root compression syndrome, left." The patient was discharged from Dr. Munslow's care on January 25, 1966, with a final diagnosis of "Neuritis, lumbar, mild." Mr. Perales continued to complain, but Dr. Munslow and Dr. Morris H. Lampert, a neurologist called in consultation, were still unable to find any objective neurological explanation for his complaints. Dr. Munslow advised that he return to work. In April 1966 Perales consulted Dr. Max Morales, Jr., a general practitioner of San Antonio. Dr. Morales hospitalized the patient from April 15 to May 2. His final *392 discharge diagnosis was: "Back sprain, lumbo-sacral spine." Perales then filed his claim. As required by 221 of the Act, 42 U.S. C. 421, the claim was referred to the state agency for determination. The agency obtained the hospital records and a report from Dr. Morales. The report set forth no physical findings or laboratory studies, but the doctor again gave as his diagnosis: "Back sprainlumbo-sacral spine," this time "moderately severe," with "Ruptured disk not ruled out." The agency arranged for a medical examination, at no cost to the patient, by Dr. John H. Langston, an orthopedic surgeon. This was done May 25. Dr. Langston's ensuing report to the Division of Disability Determination was devastating from the claimant's standpoint. The doctor referred to Perales' being "on crutches or cane" since his injury. He noted a slightly edematous condition in the legs, attributed to "inactivity and sitting around"; slight tenderness in some of the muscles of the dorsal spine, thought to be due to poor posture; and "a very mild sprain [of those muscles] which would resolve were he actually to get a little exercise and move." Apart from this, and from the residuals of the pantopaque myelography and hemilaminectomy, Dr. Langston found no abnormalities of the lumbar spine. Otherwise, he described Perales as a "big physical healthy specimen obviously holding back and limiting all of his motions, intentionally. His upper extremities, though they are completely uninvolved by his injury, he holds very rigidly as though he were semi-paralyzed. His reach and grasp are very limited but intentionally so. Neurological examination is entirely normal to detailed sensory examination with pin-wheel, vibratory sensations, and light touch. Reflexes are very active and there is no atrophy anywhere." The *393 orthopedist's summarization, impression, and prognosis are in the margin.[3] The state agency denied the claim. Perales requested reconsideration. Dr. Morales submitted a further report to the agency and an opinion to the claimant's attorney. This outlined the surgery and hospitalizations and his own conservative and continuing treatment of the patient, the medicines prescribed, the administration of ultrasound therapy, and the patient's constant complaints. The doctor concluded that the patient had not made a complete recovery from his surgery, that he was not malingering, that his injury was permanent, and that he was totally and permanently disabled.[4] He recommended against any further surgery. *394 The state agency then arranged for an examination by Dr. James M. Bailey, a board-certified psychiatrist with a subspecialty in neurology. Dr. Bailey's report to the agency on August 30, 1966, concluded with the following diagnosis: "Paranoid personality, manifested by hostility, feelings of persecution and long history of strained interpersonal relationships. "I do not feel that this patient has a separate psychiatric illness at this time. It appears that his personality is conducive to anger, frustrations, etc." The agency again reviewed the file. The Bureau of Disability Insurance of the Social Security Administration made its independent review. The report and opinion of Dr. Morales, as the claimant's attending physician, were considered, as were those of the other examining physicians. The claim was again denied. Perales requested a hearing before a hearing examiner. The agency then referred the claimant to Dr. Langston and to Dr. Richard H. Mattson for electromyography studies. Dr. Mattson's notes referred to "some chronic or past disturbance of function in the nerve supply" to the left and right anterior tibialis muscles and right *395 extensor digitorium brevis muscles that was "strongly suggestive of lack of maximal effort" and was "the kind of finding that is typically associated with a functional or psychogenic component to weakness." There was no evidence of "any active process effecting [sic] the nerves at present." Dr. Langston advised the agency that Dr. Mattson's finding of "very poor effort" verified what Dr. Langston had found on the earlier physical examination. The requested hearing was set for January 12, in San Antonio. Written notice thereof was given the claimant with a copy to his attorney. The notice contained a definition of disability, advised the claimant that he should bring all medical and other evidence not already presented, afforded him an opportunity to examine all documentary evidence on file prior to the hearing, and told him that he might bring his own physician or other witnesses and be represented at the hearing by a lawyer. The hearing took place at the time designated. A supplemental hearing was held March 31. The claimant appeared at the first hearing with his attorney and with Dr. Morales. The attorney formally objected to the introduction of the several reports of Drs. Langston, Bailey, Mattson, and Lampert, and of the hospital records. Various grounds of objection were asserted, including hearsay, absence of an opportunity for cross-examination, absence of proof the physicians were licensed to practice in Texas, failure to demonstrate that the hospital records were proved under the Business Records Act, and the conclusory nature of the reports. These objections were overruled and the reports and hospital records were introduced. The reports of Dr. Morales and of Dr. Munslow were then submitted by the claimant's counsel and admitted. At the two hearings oral testimony was submitted by claimant Perales, by Dr. Morales, by a former fellow *396 employee of the claimant, by a vocational expert, and by Dr. Lewis A. Leavitt, a physician board-certified in physical medicine and rehabilitation, and chief of, and professor in, the Department of Physical Medicine at Baylor University College of Medicine. Dr. Leavitt was called by the hearing examiner as an independent "medical adviser," that is, as an expert who does not examine the claimant but who hears and reviews the medical evidence and who may offer an opinion. The adviser is paid a fee by the Government. The claimant, through his counsel, objected to any testimony by Dr. Leavitt not based upon examination or upon a hypothetical. Dr. Leavitt testified over this objection and was cross-examined by the claimant's attorney. He that the consensus of the various medical reports was that Perales had a mild low-back syndrome of musculo-ligamentous origin. The hearing examiner, in reliance upon the several medical reports and the testimony of Dr. Leavitt, observed in his written decision, "There is objective medical evidence of impairment which the heavy preponderance of the evidence indicates to be of mild severity Taken altogether, the Hearing Examiner is of the conclusion that the claimant has not met the burden of proof." He specifically found that the claimant "is suffering from a low back syndrome of musculo-ligamentous origin, and of mild severity"; that while he "has an emotional overlay to his medical impairment it does not require psychiatric treatment and is of minimal contribution, if any, to his medical impairment or to his general ability to engage in substantial gainful activity"; that "[n]either his medical impairment nor his emotional overlay, singly or in combination, constitute a disability as defined" in the Act; and that the claimant is capable of engaging as a salesman in work in which he had previously engaged, of working as a watchman or *397 guard where strenuous activity is not required, or as a ticket-taker or janitor. The hearing examiner's decision, then, was that the claimant was not entitled to a period of disability or to disability insurance benefits. It is to be noted at this point that 205 (d) of the Act, 42 U.S. C. 405 (d), provides that the Secretary has power to issue subpoenas requiring the attendance and testimony of witnesses and the production of evidence and that the Secretary's regulations, authorized by 205 (a), 42 U.S. C. 405 (a), provide that a claimant may request the issuance of subpoenas, 20 CFR 404.926. Perales, however, who was represented by counsel, did not request subpoenas for either of the two hearings. The claimant then made a request for review by the Appeals Council and submitted as supplemental evidence a judgment dated June 2, in Perales' favor against an insurance company for workmen's compensation benefits aggregating $11,665.84, plus medical and related expenses, and a medical report letter dated December 28, 1966, by Dr. Coyle W. Williams, apparently written in support of a welfare claim made by Perales. In his letter the doctor noted an essentially negative neurological and physical examination except for tenderness in the lumbar area and limited straight leg raising. He observed, "I cannot explain all his symptoms on a physical basis. I would recommend he would re-condition himself and return to work. My estimation, he has a 15% permanent partial disability the body as a whole." The Appeals Council ruled that the decision of the hearing examiner was correct. Upon this adverse ruling the claimant instituted the present action for review pursuant to 205 (g). Each side moved for summary judgment on the administrative transcript. The District Court that it was reluctant to accept as substantial evidence the opinions of medical *398 experts submitted in the form of unsworn written reports, the admission of which would have the effect of denying the opposition an opportunity for cross-examination; that the opinion of a doctor who had never examined the claimant is entitled to little or no probative value, especially when opposed by substantial evidence including the oral testimony of an examining physician; and that what was before the court amounted to hearsay upon hearsay. The case was remanded for a new hearing before a different examiner. On appeal the Fifth Circuit noted the absence of any request by the claimant for subpoenas and held that, having this right and not exercising it, he was not in a position to complain that he had been denied the rights of confrontation and of cross-examination. It held that the hearsay evidence in the case was admissible under the Act; that, specifically, the written reports of the physicians were admissible in the administrative hearing; that Dr. Leavitt's testimony also was admissible; but that all this evidence together did not constitute substantial evidence when it was objected to and when it was contradicted by evidence from the only live witnesses. On rehearing, the Court of Appeals observed that it did not mean by its opinion that uncorroborated hearsay could never be substantial evidence supportive of a hearing examiner's decision adverse to a claimant. It emphasized that its ruling that uncorroborated hearsay could not constitute substantial evidence was applicable only when the claimant had objected and when the hearsay was directly contradicted by the testimony of live medical witnesses and by the claimant in person. Certiorari was granted in order to review and resolve this important procedural due process issue. *399 II We therefore are presented with the not uncommon situation of conflicting medical evidence. The trier of fact has the duty to resolve that conflict. We have, on the one hand, an absence of objective findings, an expressed suspicion of only functional complaints, of malingering, and of the patient's unwillingness to do anything about remedying an unprovable situation. We have, on the other hand, the claimant's and his personal physician's earnest pleas that significant and disabling residuals from the mishap of September 1965 are indeed present. The issue revolves, however, around a system which produces a mass of medical evidence in report form. May material of that kind ever be "substantial evidence" when it stands alone and is opposed by live medical evidence and the client's own contrary personal testimony? The courts below have held that it may not. III The Social Security Act has been with us since 1935. Act of August 1935, It affects nearly all of us. The system's administrative structure and procedures, with essential determinations numbering into the millions, are of a size and extent difficult to comprehend. But, as the Government's brief here accurately pronounces, "Such a system must be fairand it must work."[5] Congress has provided that the Secretary "shall have full power and authority to make rules and regulations and to establish procedures necessary or appropriate to carry out such provisions, and shall adopt reasonable and proper rules and *400 regulations to regulate and provide for the nature and extent of the proofs and evidence and the method of taking and furnishing the same in order to establish the right to benefits hereunder." 205 (a), 42 U.S. C. 405 (a). Section 205 (b) directs the Secretary to make findings and decisions; on request to give reasonable notice and opportunity for a hearing; and in the course of any hearing to receive evidence. It then provides: "Evidence may be received at any hearing before the Secretary even though inadmissible under rules of evidence applicable to court procedure." In carrying out these statutory duties the Secretary has adopted regulations that state, among other things: "The hearing examiner shall inquire fully into the matters at issue and shall receive in evidence the testimony of witnesses and any documents which are relevant and material to such matters. The procedure at the hearing generally shall be in the discretion of the hearing examiner and of such nature as to afford the parties a reasonable opportunity for a fair hearing." 20 CFR 404.927. From this it is apparent that (a) the Congress granted the Secretary the power by regulation to establish hearing procedures; (b) strict rules of evidence, applicable in the courtroom, are not to operate at social security hearings so as to bar the admission of evidence otherwise pertinent; and (c) the conduct of the hearing rests generally in the examiner's discretion. There emerges an emphasis upon the informal rather than the formal. This, we think, is as it should be, for this administrative procedure, and these hearings, should be understandable to the layman claimant, should not necessarily be stiff and comfortable only for the trained attorney, and should *401 be liberal and not strict in tone and operation. This is the obvious intent of Congress so long as the procedures are fundamentally fair. IV With this background and this atmosphere in mind, we turn to the statutory standard of "substantial evidence" prescribed by 205 (g). The Court has considered this very concept in other, yet similar, contexts. The National Labor Relations Act, 10 (e), in its original form, provided that the 's findings of fact "if supported by evidence, shall be conclusive." The Court said this meant "supported by substantial evidence" and that this was "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison The Court has adhered to that definition in varying statutory situations. See ; Universal Camera ; V We may accept the propositions advanced by the claimant, some of them long established, that procedural due process is applicable to the adjudicative administrative proceeding involving "the differing rules of fair play, which through the years, have become associated with differing types of proceedings," ; that "the `right' to Social Security benefits is in one sense `earned,' " ; and that the "extent to which procedural due process must be afforded the recipient is influenced by the extent to *402 which he may be `condemned to suffer grievous loss' Accordingly `consideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action.' " The question, then, is as to what procedural due process requires with respect to examining physicians' reports in a social security disability claim hearing. We conclude that a written report by a licensed physician who has examined the claimant and who sets forth in his report his medical findings in his area of competence may be received as evidence in a disability hearing and, despite its hearsay character and an absence of cross-examination, and despite the presence of opposing direct medical testimony and testimony by the claimant himself, may constitute substantial evidence supportive of a finding by the hearing examiner adverse to the claimant, when the claimant has not exercised his right to subpoena the reporting physician and thereby provide himself with the opportunity for cross-examination of the physician. We are prompted to this conclusion by a number of factors that, we feel, assure underlying reliability and probative value: 1. The identity of the five reporting physicians is significant. Each report presented here was prepared by a practicing physician who had examined the claimant.[6] A majority (Drs. Langston, Bailey, and Mattson) were *403 called into the case by the state agency. Although each received a fee, that fee is recompense for his time and talent otherwise devoted to private practice or other professional assignment. We cannot, and do not, ascribe bias to the work of these independent physicians, or any interest on their part in the outcome of the administrative proceeding beyond the professional curiosity a dedicated medical man possesses. 2. The vast workings of the social security administrative system make for reliability and impartiality in the consultant reports. We bear in mind that the agency operates essentially, and is intended so to do, as an adjudicator and not as an advocate or adversary. This is the congressional plan. We do not presume on this record to say that it works unfairly.[7] 3. One familiar with medical reports and the routine of the medical examination, general or specific, will recognize their elements of detail and of value. The particular reports of the physicians who examined claimant Perales were based on personal consultation and personal examination and rested on accepted medical procedures and tests. The operating neurosurgeon, Dr. Munslow, provided his pre-operative observations and diagnosis, his findings at surgery, his post-operative diagnosis, and his post-operative observations. Dr. Lampert, the neurologist, provided the history related to him by the patient, Perales' complaints, the physical examination and neurologic tests, and his professional impressions and recommendations. Dr. Langston, the orthopedist, did the same post-operatively, and described the orthopedic tests and *404 neurologic examination he performed, the results and his impressions and prognosis. Dr. Mattson, who did the post-operative electromyography, described the results of that test, and his impressions. And Dr. Bailey, the psychiatrist, related the history, the patient's complaints, and the psychiatric diagnosis that emerged from the typical psychiatric examination. These are routine, standard, and unbiased medical reports by physician specialists concerning a subject whom they had seen. That the reports were adverse to Perales' claim is not in itself bias or an indication of nonprobative character. 4. The reports present the impressive range of examination to which Perales was subjected. A specialist in neurosurgery, one in neurology, one in psychiatry, one in orthopedics, and one in physical medicine and rehabilitation add up to definitive opinion in five medical specialties, all somewhat related, but different in their emphases. It is fair to say that the claimant received professional examination and opinion on a scale beyond the reach of most persons and that this case reveals a patient and careful endeavor by the state agency and the examiner to ascertain the truth. 5. So far as we can detect, there is no inconsistency whatsoever in the reports of the five specialists. Yet each result was reached by independent examination in the writer's field of specialized training. 6. Although the claimant complains of the lack of opportunity to cross-examine the reporting physicians, he did not take advantage of the opportunity afforded him under 20 CFR 404.926 to request subpoenas for the physicians. The five-day period specified by the regulation for the issuance of the subpoenas surely afforded no real obstacle to this, for he was notified that the documentary evidence on file was available for examination before the hearing and, further, a supplemental *405 hearing could be requested. In fact, in this very case there was a supplemental hearing more than two and a half months after the initial hearings. This inaction on the claimant's part supports the Court of Appeals' view, -51, that the claimant as a consequence is to be precluded from now complaining that he was denied the rights of confrontation and cross-examination. 7. Courts have recognized the reliability and probative worth of written medical reports even in formal trials and, while acknowledging their hearsay character, have admitted them as an exception to the hearsay rule. Notable is Judge Parker's well-known ruling in the warrisk insurance case of which deserves quotation here, but which, because of its length, we do not reproduce. The Second Circuit has made a like ruling in and in so doing, relied on the Business Records Act, 28 U.S. C. 1732. 8. Past treatment by reviewing courts of written medical reports in social security disability cases is revealing. Until the decision in this case, the courts of appeals, including the Fifth Circuit, with only an occasional criticism of the medical report practice,[8] uniformly recognized reliability and probative value in such reports. The courts have reviewed administrative determinations, and upheld many adverse ones, where the only supporting evidence has been reports of this kind, buttressed sometimes, but often not, by testimony of a medical adviser such as Dr. Leavitt.[9] In these cases admissibility was *406 not contested, but the decisions do demonstrate traditional and ready acceptance of the written medical report in social security disability cases. 9. There is an additional and pragmatic factor which, although not controlling, deserves mention. This is what Chief Judge Brown has described as "[t]he sheer magnitude of that administrative burden," and the resulting necessity for written reports without "elaboration through the traditional facility of oral testimony." With over 20,000 disability claim hearings annually, the cost of providing live medical testimony at those hearings, where need has not been demonstrated by a request for a subpoena, over and above the cost of the examinations requested by hearing examiners, would be a substantial drain on the trust fund and on the energy of physicians already in short supply. VI 1. Perales relies heavily on the Court's holding and statements in particularly the comment that due process requires notice "and an effective opportunity to defend by confronting any adverse witnesses" -268. however, *407 had to do with termination of AFDC benefits without prior notice. It also concerned a situation, the Court said, "where credibility and veracity are at issue, as they must be in many termination proceedings." The Perales proceeding is not the same. We are not concerned with termination of disability benefits once granted. Neither are we concerned with a change of status without notice. Notice was given to claimant Perales. The physicians' reports were on file and available for inspection by the claimant and his counsel. And the authors of those reports were known and were subject to subpoena and to the very cross-examination that the claimant asserts he has not enjoyed. Further, the specter of questionable credibility and veracity is not present; there is professional disagreement with the medical conclusions, to be sure, but there is no attack here upon the doctors' credibility or veracity. affords little comfort to the claimant. 2. Perales also, as the Court of Appeals 416 F. 2d, at 1251, would describe the medical reports in question as "mere uncorroborated hearsay" and would relate this to Mr. Chief Justice Hughes' sentence in Consolidated Edison : "Mere uncorroborated hearsay or rumor does not constitute substantial evidence." Although the reports are hearsay in the technical sense, because their content is not produced live before the hearing examiner, we feel that the claimant and the Court of Appeals read too much into the single sentence from Consolidated Edison. The contrast the Chief Justice was drawing, at the very page cited, was not with material that would be deemed formally inadmissible in judicial proceedings but with material "without a basis in evidence having rational probative force." This was not a blanket rejection by the Court of administrative *408 reliance on hearsay irrespective of reliability and probative value. The opposite was the case. 3. The claimant, the District Court, and the Court of Appeals also criticize the use of Dr. Leavitt as a medical 412 F. 2d, at 53-54. See also Inasmuch as medical advisers are used in approximately 13% of disability claim hearings, comment as to this practice is indicated. We see nothing "reprehensible" in the practice, as the claimant would describe it. The trial examiner is a layman; the medical adviser is a board-certified specialist. He is used primarily in complex cases for explanation of medical problems in terms understandable to the layman-examiner. He is a neutral This particular record discloses that Dr. Leavitt explained the technique and significance of electromyography. He did offer his own opinion on the claimant's condition. That opinion, however, did not differ from the medical reports. Dr. Leavitt did not vouch for the accuracy of the facts assumed in the reports. No one understood otherwise. See We see nothing unconstitutional or improper in the medical adviser concept and in the presence of Dr. Leavitt in this administrative hearing. 4. Finally, the claimant complains of the system of processing disability claims. He suggests, and is joined in this by the briefs of amici, that the Administrative Procedure Act, rather than the Social Security Act, governs the processing of claims and specifically provides for cross-examination, 5 U.S. C. 556 (d) (1964 ed., Supp. V). The claimant goes on to assert that in any event the hearing procedure is invalid on due process grounds. He says that the hearing examiner has the responsibility for gathering the evidence and "to make the *409 Government's case as strong as possible"; that naturally he leans toward a decision in favor of the evidence he has gathered; that justice must satisfy the appearance of justice, citing and In re Murchison, ; and that an "independent hearing examiner such as in the" Longshoremen's and Harbor Workers' Compensation Act should be provided. We need not decide whether the APA has general application to social security disability claims, for the social security administrative procedure does not vary from that prescribed by the APA. Indeed, the latter is modeled upon the Social Security Act. See Final Report of the Attorney General's Committee on Administrative Procedure, contained in Administrative Procedure in Government Agencies, S. Doc. No. 8, 77th Cong., 1st Sess., 157 (1941); see also the remarks of Senator McCarran, chairman of the Judiciary Committee of the Senate, 92 Cong. Rec. 2155. The cited 556 (d) provides that any documentary evidence "may be received" subject to the exclusion of the irrelevant, the immaterial, and the unduly repetitious. It further provides that a "party is entitled to present his case or defense by oral or documentary evidence and to conduct such cross-examination as may be required for a full and true disclosure of the facts" and in "determining claims for money or benefits an agency may, when a party will not be prejudiced thereby, adopt procedures for the submission of all or part of the evidence in written form." These provisions conform, and are consistent with, rather than differ from or supersede, the authority given the Secretary by the Social Security Act's 205 (a) and (b) "to establish procedures," and "to regulate and provide for the nature and extent of the proofs and evidence and the method of taking and furnishing the same in *410 order to establish the right to benefits," and to receive evidence "even though inadmissible under rules of evidence applicable to court procedure." Hearsay, under either Act, is thus admissible up to the point of relevancy. The matter comes down to the question of the procedure's integrity and fundamental fairness. We see nothing that works in derogation of that integrity and of that fairness in the admission of consultants' reports, subject as they are to being material and to the use of the subpoena and consequent cross-examination. This precisely fits the statutorily prescribed "cross-examination as may be required for a full and true disclosure of the facts." That is the standard. It is clear and workable and does not fall short of procedural due process. Neither are we persuaded by the advocate-judge-multiple-hat suggestion. It assumes too much and would bring down too many procedures designed, and working well, for a governmental structure of great and growing complexity. The social security hearing examiner, furthermore, does not act as counsel. He acts as an examiner charged with developing the facts. The 44.2% reversal rate for all federal disability hearings in cases where the state agency does not grant benefits, M. Rock, An Evaluation of the SSA Appeals Process, Report No. 7, U. S. Department of HEW, p. 9 attests to the fairness of the system and refutes the implication of impropriety. We therefore reverse and remand for further proceedings. We intimate no view as to the merits. It is for the District Court now to determine whether the Secretary's findings, in the light of all material proffered and admissible, are supported by "substantial evidence" within the command of 205 (g). It is so ordered. *411 MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK and MR. |
Justice Stevens | dissenting | false | Harris v. Alabama | 1995-02-22T00:00:00 | null | https://www.courtlistener.com/opinion/117899/harris-v-alabama/ | https://www.courtlistener.com/api/rest/v3/clusters/117899/ | 1,995 | 1994-025 | 1 | 8 | 1 | Alabama's capital sentencing statute is unique. In Alabama, unlike any other State in the Union, the trial judge has unbridled discretion to sentence the defendant to deatheven though a jury has determined that death is an inappropriate penalty, and even though no basis exists for believing that any other reasonable, properly instructed jury would impose a death sentence. Even if I accepted the reasoning of Spaziano v. Florida, 468 U.S. 447, 457-465 (1984), which I do not, see id., at 467 (Stevens, J., concurring in part and dissenting in part), I would conclude that the complete *516 absence of standards to guide the judge's consideration of the jury's verdict renders the statute invalid under the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment.
I
Our opinions have repeatedly emphasized that death is a fundamentally different kind of penalty from any other that society may impose.[1] State legislatures' assignments of sentencing authority exemplify the distinction. In every State except Oklahoma, the trial judge rather than the jury is responsible for sentencing in noncapital cases. The opposite consensus, however, prevails in capital cases. In 33 of the 37 States that authorize capital punishment, the jury participates in the sentencing decision. In 29 of those States, the jury's decision is final; in the other 4Alabama, Delaware, Florida, and Indianathe judge has the power to override the jury's decision. Russell, The Constitutionality of Jury Override in Alabama Death Penalty Cases, 46 Ala. L. Rev. 5, 9-10 (1994). Thus, 33 of the 37 state legislatures that have enacted death penalty statutes have given the jury sentencing responsibilities that differ from the prevailing view of the jury's role in noncapital cases. The Federal Government also provides for jury sentencing in capital cases.[2]
These legislative decisions reflect the same judgment expressed in England in 1953 after a 4-year study by the Royal Commission on Capital Punishment:
"The question whether there are grounds for relieving the prisoner from the liability to be sentenced to death *517 is a question of quite a different order from the question whether he should serve a shorter or a longer term of imprisonment, and involves much deeper moral and social issues. The lesson of history is that, when a criminal offence is punishable by death, in practice juries will not confine their attention to the issue of guilt and ignore the sentence which conviction entails. In the past, British juries, by perverse verdicts and by petitions, did at leastas much as the campaigns of the reformers to bring the law into conformity with the developing moral conceptions of the community, especially in the field of capital punishment. It may well be argued that the men and women of the jury may be regarded as a microcosm of the community, who will reflect the changing attitudes of society as a whole to the infliction of capital punishment, and that there could therefore be no more appropriate body to decide whether the fellow-citizen whom they have found guilty of murder should suffer the penalty of death prescribed by the law or should receive a lesser punishment." Royal Commission on Capital Punishment 1949-1953, Report 200 (1953).
In ordinary, noncapital sentencing decisions, judges consider society's interests in rehabilitating the offender, in incapacitating him from committing offenses in the future, and in deterring others from committing similar offenses. In capital sentencing decisions, however, rehabilitation plays no role; incapacitation is largely irrelevant, at least when the alternative of life imprisonment without possibility of parole is available;[3] and the assumption that death provides a greater deterrent than other penalties is unsupported by *518 persuasive evidence.[4] Instead, the interest that we have identified as the principal justification for the death penalty is retribution: "[C]apital punishment is an expression of society's moral outrage at particularly offensive conduct." Gregg v. Georgia, 428 U.S. 153, 183 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.);see Gillers, Deciding Who Dies, 129 U. Pa. L. Rev. 1, 54-56 (1980). A capital sentence expresses the community's judgment that no lesser sanction will provide an adequate response to the defendant's outrageous affront to humanity. Gregg, 428 U. S., at 184. A representative cross section of the community should bear the responsibility to "express the conscience of the community on the ultimate question of life or death" in particular cases. Witherspoon v. Illinois, 391 U.S. 510, 519 (1968) (footnote omitted). An expression of community outrage carries the legitimacy of law only if it rests on fair and careful consideration, as free as possible from passion or prejudice. Although the public's apparent zeal for legislation authorizing capital punishment might cast doubt on citizens' capacity to apply such legislation fairly, I am convinced that our jury system provides reliable insulation against the passions of the polity. Voting for a political candidate who vows to be "tough on crime" differs vastly from voting at the conclusion of an actual trial to condemn a specific individual to death. Jurors' responsibilities terminate when their case ends; they answer only to their own consciences; they rarely have any concern about possible reprisals after their work is done. More importantly, they focus their attention on a particular case involving the fate of one fellow citizen, rather than on a generalized remedy for a global category of faceless violent criminals who, in the abstract, may appear unworthy of life. A jury verdict expresses a collective judgment *519 that we may fairly presume to reflect the considered view of the community.
The Constitution does not permit judges to determine the guilt or innocence of an accused without her consent. The same reasons that underlie that prohibition apply to life-ordeath sentencing decisions. The Framers of our Constitution "knew from history and experience that it was necessary to protect . . . against judges too responsive to the voice of higher authority." Duncan v. Louisiana, 391 U. S.145, 156 (1968). As we explained in Duncan:
"[T]he jury trial provisions in the Federal and State Constitutions reflect a fundamental decision about the exercise of official powera reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges. Fear of unchecked power, so typical of our State and Federal Governments in other respects, found expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence." Ibid. Community participation is as critical in life-or-death sentencing decisions as in those decisions explicitly governed by the constitutional guarantee of a jury trial. The "higher authority" to whom present-day capital judges may be "too responsive" is a political climate in which judges who covet higher officeor who merely wish to remain judgesmust constantly profess their fealty to the death penalty.[5] Alabama *520 trial judges face partisan election every six years. Ala. Code § 17-27 (1987). The danger that they will bend to political pressures when pronouncing sentence in highly publicized capital cases is the same danger confronted by judges beholden to King George III.
II
In my opinion, total reliance on judges to pronounce sentences of death is constitutionally unacceptable. See Walton v. Arizona, 497 U.S. 639, 708 (1990) (Stevens, J., dissenting). While the addition of an advisory jury may ameliorate concerns about judicial sentencing in some cases, more often that addition makes the scheme much worse, especially when, as in Alabama, the jury's verdict carries no necessary weight.
If Alabama's statute expressly provided for a death sentence upon a verdict by either the jury or the judge, I have no doubt it would violate the Constitution's command that no defendant "be twice put in jeopardy of life or limb." U. S. Const., Amdt. 5; cf. Bullington v. Missouri, 451 U. S.
5; The 430, 444-446 (1981). Alabama scheme has the same practical effect. As the Court recognizes, ante, at 513, Alabama trial judges almost always adopt jury verdicts recommending death; a prosecutor who wins before the jury can be confident that the defendant will receive a death sentence. A prosecutor who loses before the jury gets a second, fresh opportunity to secure a death sentence. She may present the judge with exactly the same evidence and arguments *521 that the jury rejected. The defendant's life is twice put in jeopardy, once before the jury and again in the repeat performance before a different, and likely less sympathetic, decisionmaker. A scheme that we assumed would "provid[e] capital defendants with more, rather than less, judicial protection," Dobbert v. Florida, 432 U.S. 282, 295 (1977),[6] has perversely devolved into a procedure that requires the defendant to stave off a death sentence at each of two de novo sentencing hearings.
Not surprisingly, given the political pressures they face, judges are far more likely than juries to impose the death penalty. This has long been the case,[7] and the recent experience of judicial overrides confirms it. Alabama judges have vetoed only five jury recommendations of death, but they have condemned 47 defendants whom juries would have spared.[8] The Court acknowledges this "ostensibly surprising" *522 fact, ante, at 513, but dismisses it as inconclusive, because "[w]e do not know . . . how many cases in which a jury recommendation of life imprisonment is adopted would have ended differently had the judge not been required to consider the jury's advice," ibid. This attempt to shrug off the reality of Alabama capital sentencing misses the point. Perhaps Alabama judges would be even more severe, and their sentences even more frequently inconsistent with the community's sense of justice, if Alabama provided for no jury verdicts at all. But the proper frame of reference is not a sentencing scheme with no jury; rather, it is a sentencing scheme with no judgethe scheme maintained by 29 of 37 States with capital punishment. In that comparison, the fact that Alabama trial judges have overridden more than nine juries' life recommendations for every vetoed death recommendation is conclusive indeed. Death sentences imposed by judges, especially against jury recommendations, sever the critical "link between contemporary community values and the penal system." Witherspoon, 391 U. S., at 519, n. 15. They result in the execution of defendants whom the community would spare.
Death sentences imposed by judges over contrary jury verdicts do more than countermand the community's judgment: They express contempt for that judgment. Judicial overrides undermine the jury system's central tenet that "sharing in the administration of justice is a phase of civic responsibility." Thiel v. Southern Pacific Co., 328 U.S. 217, 227 (1946) (Frankfurter, J., dissenting). Overrides also sacrifice the legitimacy of jury verdicts, at potentially great cost. Whereas the public presumes that a death sentence imposed by a jury reflects the community's judgment that death is the appropriate response to the defendant's crime, the same presumption does not attach to a lone government *523 official's decree. Indeed, government-sanctioned executions unsupported by judgments of a fair cross section of the citizenry may undermine respect for the value of human life itself and unwittingly increase tolerance of killing.[9] As Justice Brandeis reminded us, "Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious." Olmstead v. United States, 277 U.S. 438, 485 (1928) (dissenting opinion). Unless the imposition of the death penalty consistently rests on the most scrupulous regard for fair procedure and the application of accepted community standards, it may well teach a lesson that aggravates the very dangers it was intended to deter.
*524 III
If the Court correctly held in Spaziano that the Constitution's concerns with regularity and fairness do not bar judges from imposing death sentences over contrary jury verdicts, one would at least expect the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment to require that such schemes maintain strict standards to regularize and constrain the judge's discretion. The Court today refuses to impose any standard, holding that to do so would be "micro management." Ante, at 512. But this case involves far more than a mundane administrative detail.
Alabama stands alone among the States in its refusal to constrain its judges' power to condemn defendants over contrary jury verdicts. The Florida statute upheld in Spaziano, as interpreted by the Florida Supreme Court, requires the prosecutor to satisfy a more stringent standard before the judge than before the jury, prohibiting a judicial override unless the facts supporting the death sentence are "so clear and convincing that virtually no reasonable person could differ." Tedder v. State, 322 So. 2d 908, 910 (1975). If that standard is satisfied, a judge may rationally presume that the jury's verdict did not fairly reflect the judgment of the community. Delaware and Indiana impose similar requirements for overrides. See Pennell v. State, 604 A.2d 1368, 1377-1378 (Del. 1992); Martinez-Chavez v. State, 534 N.E.2d 731, 735 (Ind. 1989).
We have repeatedly cited the Tedder standard with approval, suggesting that the Constitution requires such a constraint on a jury override provision. See Spaziano, 468 U. S., at 465; Dobbert v. Florida, 432 U. S., at 294-295; Proffitt v. Florida, 428 U.S. 242, 252 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.). Today the Court dismisses those statements. After Justice Blackmun stated in his opinion for the Court in Spaziano that "[w]e are satisfied that the Florida Supreme Court takes [Tedder] seriously *525 and has not hesitated to reverse a trial court if it derogates the jury's role," he added, as the majority notes, that "[o]ur responsibility, however, is not to second-guess the deference accorded the jury's recommendation in a particular case, but to ensure that the result of the process is not arbitrary or discriminatory." 468 U.S., at 465. The majority reads this second statement to mean that "the hallmark of the analysis is not the particular weight a State chooses to place upon the jury's advice." Ante, at 511. That reading is overly ambitious at best. The question whether the Constitution requires the Tedder rule goes squarely to "the result of the process." The Spaziano Court declined to upset the result in the "particular case" before it based on the way the Florida Supreme Court had applied Tedder in that case. It did not announce that it would have reached the same result had Florida abjured Tedder entirely; rather, it appears to have made Tedder `s role in the Florida scheme a necessary consideration in its evaluation of Florida overrides. The Court's reading of Justice Blackmun's opinion in Spaziano is tenable, but a more likely reading is that his opinion meant to echo our previous suggestions that a jury override scheme is unconstitutional without Tedder.
I would follow those suggestions and recognize Tedder as a constitutional imperative. As I have explained, an unfettered judicial override of a jury verdict for life imprisonment cannot be taken to represent the judgment of the community. A penalty that fails to reflect the community's judgment that death is the appropriate sentence constitutes cruel and unusual punishment under our reasoning in Gregg. Remarkably, the Court attempts to bolster its holding by citing our reversal of a Florida death sentence for error before the advisory jury. Ante, at 512-513, citing Espinosa v. Florida, 505 U.S. 1079 (1992). The Court forgets that the difference between Florida and Alabama is precisely what is at stake in this case. The Constitution compelled Espinosa for the *526 same ultimate reason it compels Tedder: The community's undistorted judgment must decide a capital defendant's fate.[10] Proper attention to Espinosa would lead the Court to reject the conclusion it reaches today.
In reaching its result the Court also fails to consider our longstanding principle that the Eighth 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, 101 (1958). The Spaziano Court held that the rejection of capital jury sentencing by all but seven States, and of capital jury overrides by all but (at that time) three, did not demonstrate an "evolving standard" disfavoring overrides. Spaziano , 468 U. S., at 463-464. Surely, however, the rejection of standardless overrides by every State in the Union but Alabama is a different matter. Cf. Enmund v. Florida, 458 U.S. 782, 789-793 (1982).
The Court today casts a cloud over the legitimacy of our capital sentencing jurisprudence. The most credible justification for the death penalty is its expression of the community's outrage. To permit the State to execute a woman in spite of the community's considered judgment that she should not die is to sever the death penalty from its only legitimate mooring. The absence of any rudder on a judge's free-floating power to negate the community's will, in my judgment, renders Alabama's capital sentencing scheme fundamentally unfair and results in cruel and unusual punishment. I therefore respectfully dissent.
| Alabama's capital sentencing statute is unique. In Alabama, unlike any other State in the Union, the trial judge has unbridled discretion to sentence the defendant to deatheven though a jury has determined that death is an inappropriate penalty, and even though no basis exists for believing that any other reasonable, properly instructed jury would impose a death sentence. Even if I accepted the reasoning of which I do not, see I would conclude that the complete *516 absence of standards to guide the judge's consideration of the jury's verdict renders the statute invalid under the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment. I Our opinions have repeatedly emphasized that death is a fundamentally different kind of penalty from any other that society may impose.[1] State legislatures' assignments of sentencing authority exemplify the distinction. In every State except Oklahoma, the trial judge rather than the jury is responsible for sentencing in noncapital cases. The opposite consensus, however, prevails in capital cases. In 33 of the 37 States that authorize capital punishment, the jury participates in the sentencing decision. In 29 of those States, the jury's decision is final; in the other 4Alabama, Delaware, and Indianathe judge has the power to override the jury's decision. Russell, The Constitutionality of Jury Override in Alabama Death Penalty Cases, Thus, 33 of the 37 state legislatures that have enacted death penalty statutes have given the jury sentencing responsibilities that differ from the prevailing view of the jury's role in noncapital cases. The Federal Government also provides for jury sentencing in capital cases.[2] These legislative decisions reflect the same judgment expressed in England in 1953 after a 4-year study by the Royal Commission on Capital Punishment: "The question whether there are grounds for relieving the prisoner from the liability to be sentenced to death *517 is a question of quite a different order from the question whether he should serve a shorter or a longer term of imprisonment, and involves much deeper moral and social issues. The lesson of history is that, when a criminal offence is punishable by death, in practice juries will not confine their attention to the issue of guilt and ignore the sentence which conviction entails. In the past, British juries, by perverse verdicts and by petitions, did at leastas much as the campaigns of the reformers to bring the law into conformity with the developing moral conceptions of the community, especially in the field of capital punishment. It may well be argued that the men and women of the jury may be regarded as a microcosm of the community, who will reflect the changing attitudes of society as a whole to the infliction of capital punishment, and that there could therefore be no more appropriate body to decide whether the fellow-citizen whom they have found guilty of murder should suffer the penalty of death prescribed by the law or should receive a lesser punishment." Royal Commission on Capital Punishment 1949-1953, Report 200 (1953). In ordinary, noncapital sentencing decisions, judges consider society's interests in rehabilitating the offender, in incapacitating him from committing offenses in the future, and in deterring others from committing similar offenses. In capital sentencing decisions, however, rehabilitation plays no role; incapacitation is largely irrelevant, at least when the alternative of life imprisonment without possibility of parole is available;[3] and the assumption that death provides a greater deterrent than other penalties is unsupported by *518 persuasive evidence.[4] Instead, the interest that we have identified as the principal justification for the death penalty is retribution: "[C]apital punishment is an expression of society's moral outrage at particularly offensive conduct." ;see Gillers, Deciding Who Dies, A capital sentence expresses the community's judgment that no lesser sanction will provide an adequate response to the defendant's outrageous affront to humanity. A representative cross section of the community should bear the responsibility to "express the conscience of the community on the ultimate question of life or death" in particular cases. An expression of community outrage carries the legitimacy of law only if it rests on fair and careful consideration, as free as possible from passion or prejudice. Although the public's apparent zeal for legislation authorizing capital punishment might cast doubt on citizens' capacity to apply such legislation fairly, I am convinced that our jury system provides reliable insulation against the passions of the polity. Voting for a political candidate who vows to be "tough on crime" differs vastly from voting at the conclusion of an actual trial to condemn a specific individual to death. Jurors' responsibilities terminate when their case ends; they answer only to their own consciences; they rarely have any concern about possible reprisals after their work is done. More importantly, they focus their attention on a particular case involving the fate of one fellow citizen, rather than on a generalized remedy for a global category of faceless violent criminals who, in the abstract, may appear unworthy of life. A jury verdict expresses a collective judgment * that we may fairly presume to reflect the considered view of the community. The Constitution does not permit judges to determine the guilt or innocence of an accused without her consent. The same reasons that underlie that prohibition apply to life-ordeath sentencing decisions. The Framers of our Constitution "knew from history and experience that it was necessary to protect against judges too responsive to the voice of higher authority." Duncan v. Louisiana, 391 U. S.145, 156 As we explained in Duncan: "[T]he jury trial provisions in the Federal and State Constitutions reflect a fundamental decision about the exercise of official powera reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges. Fear of unchecked power, so typical of our State and Federal Governments in other respects, found expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence." Community participation is as critical in life-or-death sentencing decisions as in those decisions explicitly governed by the constitutional guarantee of a jury trial. The "higher authority" to whom present-day capital judges may be "too responsive" is a political climate in which judges who covet higher officeor who merely wish to remain judgesmust constantly profess their fealty to the death penalty.[5] Alabama *520 trial judges face partisan election every six years. 7 (1987). The danger that they will bend to political pressures when pronouncing sentence in highly publicized capital cases is the same danger confronted by judges beholden to King George III. II In my opinion, total reliance on judges to pronounce sentences of death is constitutionally unacceptable. See While the addition of an advisory jury may ameliorate concerns about judicial sentencing in some cases, more often that addition makes the scheme much worse, especially when, as in Alabama, the jury's verdict carries no necessary weight. If Alabama's statute expressly provided for a death sentence upon a verdict by either the jury or the judge, I have no doubt it would violate the Constitution's command that no defendant "be twice put in jeopardy of life or limb." U. S. Const., Amdt. 5; cf. Bullington v. Missouri, 451 U. S. 5; The 430, 444-446 (1981). Alabama scheme has the same practical effect. As the Court recognizes, ante, at 513, Alabama trial judges almost always adopt jury verdicts recommending death; a prosecutor who wins before the jury can be confident that the defendant will receive a death sentence. A prosecutor who loses before the jury gets a second, fresh opportunity to secure a death sentence. She may present the judge with exactly the same evidence and arguments *521 that the jury rejected. The defendant's life is twice put in jeopardy, once before the jury and again in the repeat performance before a different, and likely less sympathetic, decisionmaker. A scheme that we assumed would "provid[e] capital defendants with more, rather than less, judicial protection,"[6] has perversely devolved into a procedure that requires the defendant to stave off a death sentence at each of two de novo sentencing hearings. Not surprisingly, given the political pressures they face, judges are far more likely than juries to impose the death penalty. This has long been the case,[7] and the recent experience of judicial overrides confirms it. Alabama judges have vetoed only five jury recommendations of death, but they have condemned 47 defendants whom juries would have spared.[8] The Court acknowledges this "ostensibly surprising" *522 fact, ante, at 513, but dismisses it as inconclusive, because "[w]e do not know how many cases in which a jury recommendation of life imprisonment is adopted would have ended differently had the judge not been required to consider the jury's advice," This attempt to shrug off the reality of Alabama capital sentencing misses the point. Perhaps Alabama judges would be even more severe, and their sentences even more frequently inconsistent with the community's sense of justice, if Alabama provided for no jury verdicts at all. But the proper frame of reference is not a sentencing scheme with no jury; rather, it is a sentencing scheme with no judgethe scheme maintained by 29 of 37 States with capital punishment. In that comparison, the fact that Alabama trial judges have overridden more than nine juries' life recommendations for every vetoed death recommendation is conclusive indeed. Death sentences imposed by judges, especially against jury recommendations, sever the critical "link between contemporary community values and the penal system." Witherspoon, 391 U. S., at n. 15. They result in the execution of defendants whom the community would spare. Death sentences imposed by judges over contrary jury verdicts do more than countermand the community's judgment: They express contempt for that judgment. Judicial overrides undermine the jury system's central tenet that "sharing in the administration of justice is a phase of civic responsibility." Overrides also sacrifice the legitimacy of jury verdicts, at potentially great cost. Whereas the public presumes that a death sentence imposed by a jury reflects the community's judgment that death is the appropriate response to the defendant's crime, the same presumption does not attach to a lone government *523 official's decree. Indeed, government-sanctioned executions unsupported by judgments of a fair cross section of the citizenry may undermine respect for the value of human life itself and unwittingly increase tolerance of killing.[9] As Justice Brandeis reminded us, "Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious." Unless the imposition of the death penalty consistently rests on the most scrupulous regard for fair procedure and the application of accepted community standards, it may well teach a lesson that aggravates the very dangers it was intended to deter. *524 III If the Court correctly held in that the Constitution's concerns with regularity and fairness do not bar judges from imposing death sentences over contrary jury verdicts, one would at least expect the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment to require that such schemes maintain strict standards to regularize and constrain the judge's discretion. The Court today refuses to impose any standard, holding that to do so would be "micro management." Ante, at 512. But this case involves far more than a mundane administrative detail. Alabama stands alone among the States in its refusal to constrain its judges' power to condemn defendants over contrary jury verdicts. The statute upheld in as interpreted by the Supreme Court, requires the prosecutor to satisfy a more stringent standard before the judge than before the jury, prohibiting a judicial override unless the facts supporting the death sentence are "so clear and convincing that virtually no reasonable person could differ." If that standard is satisfied, a judge may rationally presume that the jury's verdict did not fairly reflect the judgment of the community. Delaware and Indiana impose similar requirements for overrides. See ; We have repeatedly cited the Tedder standard with approval, suggesting that the Constitution requires such a constraint on a jury override provision. See ; -; Proffitt v. Today the Court dismisses those statements. After Justice Blackmun stated in his opinion for the Court in that "[w]e are satisfied that the Supreme Court takes [Tedder] seriously *525 and has not hesitated to reverse a trial court if it derogates the jury's role," he added, as the majority notes, that "[o]ur responsibility, however, is not to second-guess the deference accorded the jury's recommendation in a particular case, but to ensure that the result of the process is not arbitrary or discriminatory." The majority reads this second statement to mean that "the hallmark of the analysis is not the particular weight a State chooses to place upon the jury's advice." Ante, at 511. That reading is overly ambitious at best. The question whether the Constitution requires the Tedder rule goes squarely to "the result of the process." The Court declined to upset the result in the "particular case" before it based on the way the Supreme Court had applied Tedder in that case. It did not announce that it would have reached the same result had abjured Tedder entirely; rather, it appears to have made Tedder `s role in the scheme a necessary consideration in its evaluation of overrides. The Court's reading of Justice Blackmun's opinion in is tenable, but a more likely reading is that his opinion meant to echo our previous suggestions that a jury override scheme is unconstitutional without Tedder. I would follow those suggestions and recognize Tedder as a constitutional imperative. As I have explained, an unfettered judicial override of a jury verdict for life imprisonment cannot be taken to represent the judgment of the community. A penalty that fails to reflect the community's judgment that death is the appropriate sentence constitutes cruel and unusual punishment under our reasoning in Remarkably, the Court attempts to bolster its holding by citing our reversal of a death sentence for error before the advisory jury. Ante, at 512-513, citing Espinosa v. The Court forgets that the difference between and Alabama is precisely what is at stake in this case. The Constitution compelled Espinosa for the *526 same ultimate reason it compels Tedder: The community's undistorted judgment must decide a capital defendant's fate.[10] Proper attention to Espinosa would lead the Court to reject the conclusion it reaches today. In reaching its result the Court also fails to consider our longstanding principle that the Eighth Amendment "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." The Court held that the rejection of capital jury sentencing by all but seven States, and of capital jury overrides by all but (at that time) three, did not demonstrate an "evolving standard" disfavoring overrides. -464. Surely, however, the rejection of standardless overrides by every State in the Union but Alabama is a different matter. Cf. Enmund v. The Court today casts a cloud over the legitimacy of our capital sentencing jurisprudence. The most credible justification for the death penalty is its expression of the community's outrage. To permit the State to execute a woman in spite of the community's considered judgment that she should not die is to sever the death penalty from its only legitimate mooring. The absence of any rudder on a judge's free-floating power to negate the community's will, in my judgment, renders Alabama's capital sentencing scheme fundamentally unfair and results in cruel and unusual punishment. I therefore respectfully dissent. |
per_curiam | per_curiam | true | Costello v. Wainwright | 1977-03-21T00:00:00 | null | https://www.courtlistener.com/opinion/109620/costello-v-wainwright/ | https://www.courtlistener.com/api/rest/v3/clusters/109620/ | 1,977 | 1976-069 | 2 | 9 | 0 | The motion to strike the brief of the United States as amicus curiae is denied.
Petitioners in this case attacked the overcrowding in Florida's prisons as violative of the Cruel and Unusual Punishments Clause of the Eighth Amendment, made applicable to the States by the Fourteenth. A single District Judge found substantial constitutional violations and issued a preliminary injunction ordering the Division of Corrections either to reduce the inmate population or to increase prison capacity. In an en banc decision, the United States Court of Appeals for the Fifth Circuit vacated the District Court's decision on the ground that only a three-judge court convened in accordance with 28 U.S. C. § 2281 could order such relief. 539 F.2d 547 (1976).
*326 On its face, the complaint that initiated this case involved no challenge to state statutes or regulations. There was thus no reason at the beginning of this litigation to suspect that a three-judge court should hear the case. See Moody v. Flowers, 387 U.S. 97, 104 (1967); Baxter v. Palmigiano, 425 U.S. 308 (1976); Morales v. Turman, ante, p. 322. In granting equitable relief, however, the District Court contemplated as one means of relieving the prison system's unconstitutional overcrowding the possibility that state prison officials would have to violate their statutory duty to continue to accept custody of prisoners properly committed to them. The Court of Appeals concluded that such equitable relief could be granted only by a three-judge court, apparently because it viewed the possible temporary suspension of an otherwise valid state statute to effectuate federally mandated relief as equivalent to finding that statute unconstitutional.
We cannot agree. The applicability of § 2281 as written turns on whether a state statute is alleged to be unconstitutional, not on whether an equitable remedy for unconstitutional state administrative behavior ultimately impinges on duties imposed under concededly constitutional state statutes. To hold otherwise would require postponing the threshold question of jurisdiction until the merits of the controversy had been fully resolved and the broad outlines of equitable relief discerned. Section 2281 embodies no such wasteful and uncertain mandate.
Since we conclude that the single District Judge properly exercised full jurisdiction in this case, and that his judgment is, therefore, reviewable on the merits in the Court of Appeals (28 U.S. C. § 1291), the petition for a writ of certiorari and the motion for leave to proceed in forma pauperis are granted, the judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered | The motion to strike the brief of the United States as amicus curiae is denied. Petitioners in this case attacked the overcrowding in Florida's prisons as violative of the Cruel and Unusual Punishments Clause of the Eighth Amendment, made applicable to the States by the Fourteenth. A single District Judge found substantial constitutional violations and issued a preliminary injunction ordering the Division of Corrections either to reduce the inmate population or to increase prison capacity. In an en banc decision, the United States Court of Appeals for the Fifth Circuit vacated the District Court's decision on the ground that only a three-judge court convened in accordance with 28 U.S. C. 2281 could order such relief. *326 On its face, the complaint that initiated this case involved no challenge to state statutes or regulations. There was thus no reason at the beginning of this litigation to suspect that a three-judge court should hear the case. See ; ; Morales v. Turman, ante, p. 322. In granting equitable relief, however, the District Court contemplated as one means of relieving the prison system's unconstitutional overcrowding the possibility that state prison officials would have to violate their statutory duty to continue to accept custody of prisoners properly committed to them. The Court of Appeals concluded that such equitable relief could be granted only by a three-judge court, apparently because it viewed the possible temporary suspension of an otherwise valid state statute to effectuate federally mandated relief as equivalent to finding that statute unconstitutional. We cannot agree. The applicability of 2281 as written turns on whether a state statute is alleged to be unconstitutional, not on whether an equitable remedy for unconstitutional state administrative behavior ultimately impinges on duties imposed under concededly constitutional state statutes. To hold otherwise would require postponing the threshold question of jurisdiction until the merits of the controversy had been fully resolved and the broad outlines of equitable relief discerned. Section 2281 embodies no such wasteful and uncertain mandate. Since we conclude that the single District Judge properly exercised full jurisdiction in this case, and that his judgment is, therefore, reviewable on the merits in the Court of Appeals (28 U.S. C. 1291), the petition for a writ of certiorari and the motion for leave to proceed in forma pauperis are granted, the judgment is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered |
Justice Ginsburg | concurring | false | McIntyre v. Ohio Elections Comm'n | 1995-04-19T00:00:00 | null | https://www.courtlistener.com/opinion/117921/mcintyre-v-ohio-elections-commn/ | https://www.courtlistener.com/api/rest/v3/clusters/117921/ | 1,995 | 1994-045 | 2 | 7 | 2 | The dissent is stirring in its appreciation of democratic values. But I do not see the Court's opinion as unguided by "bedrock principle," tradition, or our case law. See post, at 375-378, 378-380. Margaret McIntyre's case, it seems to me, bears a marked resemblance to Margaret Gilleo's case[1] and Mary Grace's.[2] All three decisions, I believe, are sound, and hardly sensational, applications of our First Amendment jurisprudence.
In for a calf is not always in for a cow. The Court's decision finds unnecessary, over intrusive, and inconsistent with American ideals the State's imposition of a fine on an individual leafleteer who, within her local community, spoke her mind, but sometimes not her name. We do not thereby hold that the State may not in other, larger circumstances require the speaker to disclose its interest by disclosing its identity. Appropriately leaving open matters not presented by McIntyre's handbills, the Court recognizes that a State's interest in protecting an election process "might justify a more limited identification requirement." Ante, at 353. But the Court has convincingly explained why Ohio lacks "cause for inhibiting the leaf letting at issue here." Ibid.
Justice Thomas, concurring in the judgment.
I agree with the majority's conclusion that Ohio's election law, Ohio Rev. Code Ann. ง 3599.09(A) (1988), is inconsistent with the First Amendment. I would apply, however, a different *359 methodology to this case. Instead of asking whether "an honorable tradition" of anonymous speech has existed throughout American history, or what the "value" of anonymous speech might be, we should determine whether the phrase "freedom of speech, or of the press," as originally understood, protected anonymous political leaf letting. I believe that it did.
I
The First Amendment states that the government "shall make no law . . . abridging the freedom of speech, or of the press." U. S. Const., Amdt. 1. When interpreting the Free Speech and Press Clauses, we must be guided by their original meaning, for "[t]he Constitution is a written instrument. As such its meaning does not alter. That which it meant when adopted, it means now." South Carolina v. United States, 199 U.S. 437, 448 (1905). We have long recognized that the meaning of the Constitution "must necessarily depend on the words of the constitution [and] the meaning and intention of the convention which framed and proposed it for adoption and ratification to the conventions . . . in the several states." Rhode Island v. Massachusetts, 12 Pet. 657, 721 (1838). See also INS v. Chadha, 462 U.S. 919, 959 (1983). We should seek the original understanding when we interpret the Speech and Press Clauses, just as we do when we read the Religion Clauses of the First Amendment. When the Framers did not discuss the precise question at issue, we have turned to "what history reveals was the contemporaneous understanding of [the Establishment Clause's] guarantees." Lynch v. Donnelly, 465 U.S. 668, 673 (1984). "[T]he line we must draw between the permissible and the impermissible is one which accords with history and faithfully reflects the understanding of the Founding Fathers." School Dist. of Abington Township v. Schempp, 374 U.S. 203, 294 (1963) (Brennan, J., concurring); see also Lee v. Weisman, 505 U.S. 577, 632-633 (1992) (Scalia, J., dissenting).
*360 II
Unfortunately, we have no record of discussions of anonymous political expression either in the First Congress, which drafted the Bill of Rights, or in the state ratifying conventions. Thus, our analysis must focus on the practices and beliefs held by the Founders concerning anonymous political articles and pamphlets. As an initial matter, we can safely maintain that the leaflets at issue in this case implicate the freedom of the press. When the Framers thought of the press, they did not envision the large, corporate newspaper and television establishments of our modern world. Instead, they employed the term "the press" to refer to the many independent printers who circulated small newspapers or published writers' pamphlets for a fee. See generally B. Bailyn & J. Hench, The Press & the American Revolution (1980); L. Levy, Emergence of a Free Press (1985); B. Bailyn, The Ideological Origins of the American Revolution (1967). "It was in this formโas pamphletsโthat much of the most important and characteristic writing of the American Revolution occurred." 1 B. Bailyn, Pamphlets of the American Revolution 3 (1965). This practice continued during the struggle for ratification. See, e. g., Pamphlets on the Constitution of the United States (P. Ford ed. 1888). Regardless of whether one designates the right involved here as one of press or one of speech, however, it makes little difference in terms of our analysis, which seeks to determine only whether the First Amendment, as originally understood, protects anonymous writing.
There is little doubt that the Framers engaged in anonymous political writing. The essays in the Federalist Papers, published under the pseudonym of "Publius," are only the most famous example of the outpouring of anonymous political writing that occurred during the ratification of the Constitution. Of course, the simple fact that the Framers engaged in certain conduct does not necessarily prove that they forbade its prohibition by the government. See post, at 373 *361 (Scalia, J., dissenting). In this case, however, the historical evidence indicates that Founding-era Americans opposed attempts to require that anonymous authors reveal their identities on the ground that forced disclosure violated the "freedom of the press."
For example, the earliest and most famous American experience with freedom of the press, the 1735 Zenger trial, centered around anonymous political pamphlets. The case involved a printer, John Peter Zenger, who refused to reveal the anonymous authors of published attacks on the Crown Governor of New York. When the Governor and his council could not discover the identity of the authors, they prosecuted Zenger himself for seditious libel. See J. Alexander, A Brief Narrative of the Case and Trial of John Peter Zenger 9-19 (S. Katz ed. 1972). Although the case set the Colonies afire for its example of a jury refusing to convict a defendant of seditious libel against Crown authorities, it also signified at an early moment the extent to which anonymity and the freedom of the press were intertwined in the early American mind.
During the Revolutionary and Ratification periods, the Framers' understanding of the relationship between anonymity and freedom of the press became more explicit. In 1779, for example, the Continental Congress attempted to discover the identity of an anonymous article in the Pennsylvania Packet signed by the name "Leonidas." Leonidas, who actually was Dr. Benjamin Rush, had attacked the Members of Congress for causing inflation throughout the States and for engaging in embezzelment and fraud. 13 Letters of Delegates to Congress 1774-1789, p. 141, n. 1 (G. Gawalt & R. Gephart eds. 1986). Elbridge Gerry, a delegate from Massachusetts, moved to haul the printer of the newspaper before Congress to answer questions concerning Leonidas. Several Members of Congress then rose to oppose Gerry's motion on the ground that it invaded the freedom of the press. Merriweather Smith of Virginia rose, quoted from *362 the offending article with approval, and then finished with a declaration that "[w]hen the liberty of the Press shall be restrained . . . the liberties of the People will be at an end." Henry Laurens, Notes of Debates, July 3, 1779, id. , at 139. Supporting Smith, John Penn of North Carolina argued that the writer "no doubt had good designs, " and that "[t]he liberty of the Press ought not to be restrained." Ibid. In the end, these arguments persuaded the assembled delegates, who "sat mute" in response to Gerry's motion. Id. , at 141. Neither the printer nor Dr. Rush ever appeared before Congress to answer for their publication. D. Teeter, Press Freedom and the Public Printing: Pennsylvania, 1775-83, 45 Journalism Q. 445, 451 (1968).
At least one of the state legislatures shared Congress' view that the freedom of the press protected anonymous writing. Also in 1779, the upper house of the New Jersey State Legislature attempted to punish the author of a satirical attack on the Governor and the College of New Jersey (now Princeton) who had signed his work "Cincinnatus." R. Hixson, Isaac Collins: A Quaker Printer in 18th Century America 95 (1968). Attempting to enforce the crime of seditious libel, the State Legislative Council ordered Isaac Collinsโthe printer and editor of the newspaper in which the article had appearedโto reveal the author's identity. Refusing, Collins declared: "`Were I to comply . . . I conceive I should betray the trust reposed in me, and be far from acting as a faithful guardian of the Liberty of the Press.' " Id. , at 96. Apparently, the State Assembly agreed that anonymity was protected by the freedom of the press, as it voted to support the editor and publisher by frustrating the council's orders. Id. , at 95.
By 1784, the same Governor of New Jersey, William Livingston, was at work writing anonymous articles that defended the right to publish anonymously as part of the freedom of the press. Under the pseudonym "Scipio," *363 Livingston wrote several articles attacking the legislature's failure to lower taxes, and he accused a state officer of stealing or losing state funds during the British invasion of New Jersey. Id. , at 107-109; Scipio, Letter to the Printer, Feb. 24, 1784, The New-Jersey Gazette. Responding to the allegations, the officer called upon Scipio "to avow your publication, give up your real name." S. Tucker, To Scipio, Mar. 2, 1784, The New-Jersey Gazette. Livingston replied with a four-part series defending "the Liberty of the Press." Although Livingston at first defended anonymity because it encouraged authors to discuss politics without fear of reprisal, he ultimately invoked the liberty of the press as the guardian for anonymous political writing. "I hope [Tucker] is not seriously bent upon a total subversion of our political system," Scipio wrote. "And pray may not a man, in a free country, convey thro' the press his sentiments on publick grievances. . . without being obliged to send a certified copy of the baptismal register to prove his name." Scipio, On the Liberty of the Press IV, Apr. 26, 1784, The New-Jersey Gazette.
To be sure, there was some controversy among newspaper editors over publishing anonymous articles and pamphlets. But this controversy was resolved in a manner that indicates that the freedom of the press protected an author's anonymity. The tempest began when a Federalist, writing anonymously himself, expressed fear that "emissaries" of "foreign enemies" would attempt to scuttle the Constitution by "fill[ing] the press with objections" against the proposal. Boston Independent Chronicle, Oct. 4, 1787, in 13 Documentary History of the Ratification of the Constitution 315 (J. Kaminski & G. Saladino eds. 1981) (hereinafter Documentary History). He called upon printers to refrain from publishing when the author "chooses to remain concealed." Ibid. Benjamin Russell, the editor of the prominent Federalist newspaper the Massachusetts Centinel, immediately adopted a policy of refusing to publish Anti-Federalist pieces unless the *364 author provided his identity to be "handed to the publick, if required." Massachusetts Centinel, Oct. 10, 1787, id., at 312, 315-316. A few days later, the Massachusetts Gazette announced that it would emulate the example set by the Massachusetts Centinel. Massachusetts Gazette, Oct. 16, 1787, id., at 317. In the same issue, the Gazette carried an article claiming that requiring an anonymous writer to leave his name with the printer, so that anyone who wished to know his identity could be informed, "appears perfectly reasonable, and is perfectly consistent with the liberty of the press." A Citizen, Massachusetts Gazette, Oct. 16, 1787, id., at 316. Federalists expressed similar thoughts in Philadelphia. See A Philadelphia Mechanic, Philadelphia Independent Gazetteer, Oct. 29, 1787, id., at 318-319; Galba, Philadelphia Independent Gazetteer, Oct. 31, 1787, id., at 319. The Jewel, Philadelphia Independent Gazetteer, Nov. 2, 1787, id., at 320.
Ordinarily, the fact that some founding-era editors as a matter of policy decided not to publish anonymous articles would seem to shed little light upon what the Framers thought the government could do. The widespread criticism raised by the Anti-Federalists, however, who were the driving force behind the demand for a Bill of Rights, indicates that they believed the freedom of the press to include the right to author anonymous political articles and pamphlets.[1] That most other Americans shared this understanding is reflected in the Federalists' hasty retreat before the withering criticism of their assault on the liberty of the press.
Opposition to Russell's declaration centered in Philadelphia. Three Philadelphia papers published the "Citizen" piece that had run in the Massachusetts Gazette. Id., at *365 318-320.[2] In response, one of the leading Anti-Federalist writers, the "Federal Farmer," attacked Russell's policy:
"What can be the views of those gentlemen in Boston, who countenanced the Printers in shutting up the press against a fair and free investigation of this important system in the usual way?" Letters From the Federal Farmer No. 5, Oct. 13, 1787, in 2 The Complete Anti-Federalist 254 (H. Storing ed. 1981). Another Anti-Federalist, "Philadelphiensis," also launched a substantial attack on Russell and his defenders for undermining the freedom of the press. "In this desperate situation of affairs . . . the friends of this despotic scheme of government, were driven to the last and only alternative from which there was any probability of success; namely, the abolition of the freedom of the Press. " Philadelphiensis, Essay I, Independent Gazetteer, Nov. 7, 1787, 3 id. , at 102. In Philadelphiensis' eyes, Federalist attempts to suppress the Anti-Federalist press by requiring the disclosure of authors' identities only foreshadowed the oppression permitted by the new Constitution. "Here we see pretty plainly through [the Federalists'] excellent regulation of the press, how things are to be carried on after the adoption of the new constitution." Id. , at 103. According to Philadelphiensis, Federalist policies had already ruined freedom in Massachusetts: "In Boston the liberty of the press is now completely abolished; and hence all other privileges and rights of the people will in a short time be destroyed." Id. , at 104.
Not limited to Philadelphia, the Anti-Federalist attack was repeated widely throughout the States. In New York, one writer exclaimed that the Federalist effort to suppress anonymity *366 would "reverse the important doctrine of the freedom of the press, " whose "truth" was "universally acknowledged." Detector, New York Journal, Oct. 25, 1787, in 13 Documentary History 318. "Detector" proceeded to proclaim that Russell's policy was "the introduction of this first trait of slavery into your country!" Ibid. Responding to the Federalist editorial policy, a Rhode Island AntiFederalist wrote: "The Liberty of the Press, or the Liberty which every Person in the United States at present enjoys. . . is a Privilege of infinite Importance . . . for which . . . we have fought and bled," and that the attempt by "our aristocratical Gentry, to have every Person's Name published who should write against the proposed Federal Constitution, has given many of us a just Alarm." Argus, Providence United States Chronicle, Nov. 8, 1787, id. , at 320-321. Edward Powars, editor of the Anti-Federalist Boston American Herald, proclaimed that his pages would remain "free and open to all parties." Boston American Herald, Oct. 15, 1787, id., at 316. In the Boston Independent Chronicle of Oct. 18, 1787, "Solon" accused Russell of attempting to undermine a "freedom and independence of sentiments " which "should never be checked in a free country" and was "so essential to the existance of free Governments." Id. , at 313.
The controversy over Federalist attempts to prohibit anonymous political speech is significant for several reasons. First, the Anti-Federalists clearly believed the right to author and publish anonymous political articles and pamphlets was protected by the liberty of the press. Second, although printers' editorial policies did not constitute state action, the Anti-Federalists believed that the Federalists were merely flexing the governmental powers they would fully exercise upon the Constitution's ratification. Third, and perhaps most significantly, it appears that the Federalists agreed with the Anti-Federalist critique. In Philadelphia, where opposition to the ban was strongest, there is no record that any newspaper adopted the nonanonymity policy, nor that of *367 any city or State aside from Russell's Massachusetts Centinel and the Federalist Massachusetts Gazette. Moreover, these two papers' bark was worse than their bite. In the face of widespread criticism, it appears that Russell retreated from his policy and, as he put it, "`readily' " reprinted several anonymous Federalist and Anti-Federalist essays to show that claims that he had suppressed freedom of the press "`had not any foundation in truth.' " 13 Documentary History 313-314. Likewise, the Massachusetts Gazette refused to release the names of Anti-Federalist writers when requested. Ibid. When Federalist attempts to ban anonymity are followed by a sharp, widespread Anti-Federalist defense in the name of the freedom of the press, and then by an open Federalist retreat on the issue, I must conclude that both Anti-Federalists and Federalists believed that the freedom of the press included the right to publish without revealing the author's name.
III
The historical record is not as complete or as full as I would desire. For example, there is no evidence that, after the adoption of the First Amendment, the Federal Government attempted to require writers to attach their names to political documents. Nor do we have any indication that the federal courts of the early Republic would have squashed such an effort as a violation of the First Amendment. The understanding described above, however, when viewed in light of the Framers' universal practice of publishing anonymous articles and pamphlets, indicates that the Framers shared the belief that such activity was firmly part of the freedom of the press. It is only an innovation of modern times that has permitted the regulation of anonymous speech.
The large quantity of newspapers and pamphlets the Framers produced during the various crises of their generation show the remarkable extent to which the Framers relied upon anonymity. During the break with Great Britain, the *368 revolutionaries employed pseudonyms both to conceal their identity from Crown authorities and to impart a message. Often, writers would choose names to signal their point of view or to invoke specific classical and modern "crusaders in an agelong struggle against tyranny." A. Schlesinger, Prelude to Independence 35 (1958). Thus, leaders of the struggle for independence would adopt descriptive names such as "Common Sense," a "Farmer," or "A True Patriot," or historical ones such as "Cato" (a name used by many to refer to the Roman Cato and to Cato's letters), or "Mucius Scaevola." Id. , at xiiโxiii. The practice was even more prevalent during the great outpouring of political argument and commentary that accompanied the ratification of the Constitution. Besides "Publius," prominent Federalists signed their articles and pamphlets with names such as "An American Citizen," "Marcus," "A Landholder," "Americanus"; AntiFederalists replied with the pseudonyms "Cato," "Centinel," "Brutus," the "Federal Farmer," and "The Impartial Examiner." See generally 1-2 Debate on the Constitution (B. Bailyn ed. 1993). The practice of publishing one's thoughts anonymously or under pseudonym was so widespread that only two major Federalist or Anti-Federalist pieces appear to have been signed by their true authors, and they may have had special reasons to do so.[3]
If the practice of publishing anonymous articles and pamphlets fell into disuse after the Ratification, one might infer that the custom of anonymous political speech arose only in response to the unusual conditions of the 1776-1787 period. *369 After all, the Revolution and the Ratification were not "elections," per se, either for candidates or for discrete issues. Records from the first federal elections indicate, however, that anonymous political pamphlets and newspaper articles remained the favorite media for expressing views on candidates. In Pennsylvania, for example, writers for or against the Federalist and Anti-Federalist candidates wrote under the names "Numa," "Pompilius," "A Friend to Agriculture, Trade, and Good Laws," "A Federal Centinel," a "Freeman," "Centinel," "A Real Patriot to All True Federalists," "A Mechanic," "Justice," "A German Federalist," and so on. See generally 1 Documentary History of the First Federal Elections 1788-1790, pp. 246-362 (M. Jensen & R. Becker eds. 1976). This appears to have been the practice in allof the major States of which we have substantial records today. See 1 id. , at 446-464 (Massachusetts); 2 id. , at 108-122, 175โ 229 (Maryland); 2 id. , at 387-397 (Virginia); 3 id. , at 204-216, 436-493 (New York). It seems that actual names were used rarely, and usually only by candidates who wanted to explain their positions to the electorate.
The use of anonymous writing extended to issues as well as candidates. The ratification of the Constitution was not the only issue discussed via anonymous writings in the press. James Madison and Alexander Hamilton, for example, resorted to pseudonyms in the famous "Helvidius" and "Pacificus" debates over President Washington's declaration of neutrality in the war between the British and French. See Hamilton, Pacificus No. 1, June 29, 1793, in 15 Papers of Alexander Hamilton 33-43 (H. Syrett ed. 1969); Madison, Helvidius No. 1, Aug. 24, 1793, in 15 Papers of James Madison 66-73 (T. Mason, R. Rutland, J. Sisson eds. 1985). Anonymous writings continued in such Republican papers as the Aurora and Federalists organs such as the Gazette of the United States at least until the election of Thomas Jefferson. See generally J. Smith, Freedom's Fetters (1956).
*370 IV
This evidence leads me to agree with the majority's result, but not its reasoning. The majority fails to seek the original understanding of the First Amendment, and instead attempts to answer the question in this case by resorting to three approaches. First, the majority recalls the historical practice of anonymous writing from Shakespeare's works to the Federalist Papers to Mark Twain. Ante, at 341, and n. 4, 342-343, and n. 6, 357. Second, it finds that anonymous speech has an expressive value both to the speaker and to society that outweighs public interest in disclosure. Third, it finds that ง 3599.09(A) cannot survive strict scrutiny because it is a "content-based" restriction on speech.
I cannot join the majority's analysis because it deviates from our settled approach to interpreting the Constitution and because it superimposes its modern theories concerning expression upon the constitutional text. Whether "great works of literature"โby Voltaire or George Eliot have been published anonymously should be irrelevant to our analysis, because it sheds no light on what the phrases "free speech" or "free press" meant to the people who drafted and ratified the First Amendment. Similarly, whether certain types of expression have "value" today has little significance; what is important is whether the Framers in 1791 believed anonymous speech sufficiently valuable to deserve the protection of the Bill of Rights. And although the majority faithfully follows our approach to "content-based" speech regulations, we need not undertake this analysis when the original understanding provides the answer.
While, like Justice Scalia, I am loath to overturn a century of practice shared by almost all of the States, I believe the historical evidence from the framing outweighs recent tradition. When interpreting other provisions of the Constitution, this Court has believed itself bound by the text of the Constitution and by the intent of those who drafted and ratified it. It should hold itself to no less a standard when *371 interpreting the Speech and Press Clauses. After reviewing the weight of the historical evidence, it seems that the Framers understood the First Amendment to protect an author's right to express his thoughts on political candidates or issues in an anonymous fashion. Because the majority has adopted an analysis that is largely unconnected to the Constitution's text and history, I concur only in the judgment. | The dissent is stirring in its appreciation of democratic values. But I do not see the Court's opinion as unguided by "bedrock principle," tradition, or our case law. See post, at 375-378, 378-380. Margaret McIntyre's case, it seems to me, bears a marked resemblance to Margaret Gilleo's case[1] and Mary Grace's.[2] All three decisions, I believe, are sound, and hardly sensational, applications of our First Amendment jurisprudence. In for a calf is not always in for a cow. The Court's decision finds unnecessary, over intrusive, and inconsistent with American ideals the State's imposition of a fine on an individual leafleteer who, within her local community, spoke her mind, but sometimes not her name. We do not thereby hold that the State may not in other, larger circumstances require the speaker to disclose its interest by disclosing its identity. Appropriately leaving open matters not presented by McIntyre's handbills, the Court recognizes that a State's interest in protecting an election process "might justify a more limited identification requirement." Ante, at 353. But the Court has convincingly explained why Ohio lacks "cause for inhibiting the leaf letting at issue here." Justice Thomas, concurring in the judgment. I agree with the majority's conclusion that Ohio's election law, Ohio Rev. Code Ann. ง 3599.09(A) (1988), is inconsistent with the First Amendment. I would apply, however, a different *359 methodology to this case. Instead of asking whether "an honorable tradition" of anonymous speech has existed throughout American history, or what the "value" of anonymous speech might be, we should determine whether the phrase "freedom of speech, or of the press," as originally understood, protected anonymous political leaf letting. I believe that it d I The First Amendment states that the government "shall make no law abridging the freedom of speech, or of the press." U. S. Const., Amdt. 1. When interpreting the Free Speech and Press Clauses, we must be guided by their original meaning, for "[t]he Constitution is a written instrument. As such its meaning does not alter. That which it meant when adopted, it means now." South We have long recognized that the meaning of the Constitution "must necessarily depend on the words of the constitution [and] the meaning and intention of the convention which framed and proposed it for adoption and ratification to the conventions in the several states." Rhode See also We should seek the original understanding when we interpret the Speech and Press Clauses, just as we do when we read the Religion Clauses of the First Amendment. When the Framers did not discuss the precise question at issue, we have turned to "what history reveals was the contemporaneous understanding of [the Establishment Clause's] guarantees." "[T]he line we must draw between the permissible and the impermissible is one which accords with history and faithfully reflects the understanding of the Founding Fathers." School Dist. of Abington ; see also *360 II Unfortunately, we have no record of discussions of anonymous political expression either in the First Congress, which drafted the Bill of Rights, or in the state ratifying conventions. Thus, our analysis must focus on the practices and beliefs held by the Founders concerning anonymous political articles and pamphlets. As an initial matter, we can safely maintain that the leaflets at issue in this case implicate the freedom of the press. When the Framers thought of the press, they did not envision the large, corporate newspaper and television establishments of our modern world. Instead, they employed the term "the press" to refer to the many independent printers who circulated small newspapers or published writers' pamphlets for a fee. See generally B. Bailyn & J. Hench, The Press & the American Revolution (1980); L. Levy, Emergence of a Free Press (1985); B. Bailyn, The Ideological Origins of the American Revolution (1967). "It was in this formโas pamphletsโthat much of the most important and characteristic writing of the American Revolution occurred." 1 B. Bailyn, Pamphlets of the American Revolution 3 (1965). This practice continued during the struggle for ratification. See, e. g., Pamphlets on the Constitution of the United States (P. Ford ed. 1888). Regardless of whether one designates the right involved here as one of press or one of speech, however, it makes little difference in terms of our analysis, which seeks to determine only whether the First Amendment, as originally understood, protects anonymous writing. There is little doubt that the Framers engaged in anonymous political writing. The essays in the Federalist Papers, published under the pseudonym of "Publius," are only the most famous example of the outpouring of anonymous political writing that occurred during the ratification of the Constitution. Of course, the simple fact that the Framers engaged in certain conduct does not necessarily prove that they forbade its prohibition by the government. See post, at 373 *361 In this case, however, the historical evidence indicates that Founding-era Americans opposed attempts to require that anonymous authors reveal their identities on the ground that forced disclosure violated the "freedom of the press." For example, the earliest and most famous American experience with freedom of the press, the 1735 Zenger trial, centered around anonymous political pamphlets. The case involved a printer, John Peter Zenger, who refused to reveal the anonymous authors of published attacks on the Crown Governor of New York. When the Governor and his council could not discover the identity of the authors, they prosecuted Zenger himself for seditious libel. See J. Alexander, A Brief Narrative of the Case and Trial of John Peter Zenger 9-19 (S. Katz ed. 1972). Although the case set the Colonies afire for its example of a jury refusing to convict a defendant of seditious libel against Crown authorities, it also signified at an early moment the extent to which anonymity and the freedom of the press were intertwined in the early American mind. During the Revolutionary and Ratification periods, the Framers' understanding of the relationship between anonymity and freedom of the press became more explicit. In 1779, for example, the Continental Congress attempted to discover the identity of an anonymous article in the Pennsylvania Packet signed by the name "Leonidas." Leonidas, who actually was Dr. Benjamin Rush, had attacked the Members of Congress for causing inflation throughout the States and for engaging in embezzelment and fraud. 13 Letters of Delegates to Congress 1774-1789, p. 141, n. 1 (G. Gawalt & R. Gephart eds. 1986). Elbridge Gerry, a delegate from Massachusetts, moved to haul the printer of the newspaper before Congress to answer questions concerning Leonidas. Several Members of Congress then rose to oppose Gerry's motion on the ground that it invaded the freedom of the press. Merriweather Smith of Virginia rose, quoted from *362 the offending article with approval, and then finished with a declaration that "[w]hen the liberty of the Press shall be restrained the liberties of the People will be at an end." Henry Laurens, Notes of Debates, July 3, 1779, at 139. Supporting Smith, John Penn of North Carolina argued that the writer "no doubt had good designs, " and that "[t]he liberty of the Press ought not to be restrained." In the end, these arguments persuaded the assembled delegates, who "sat mute" in response to Gerry's motion. at 141. Neither the printer nor Dr. Rush ever appeared before Congress to answer for their publication. D. Teeter, Press Freedom and the Public Printing: Pennsylvania, 1775-83, 45 Journalism Q. 445, 451 (1968). At least one of the state legislatures shared Congress' view that the freedom of the press protected anonymous writing. Also in 1779, the upper house of the New Jersey State Legislature attempted to punish the author of a satirical attack on the Governor and the College of New Jersey (now Princeton) who had signed his work "Cincinnatus." R. Hixson, Isaac Collins: A Quaker Printer in 18th Century America 95 (1968). Attempting to enforce the crime of seditious libel, the State Legislative Council ordered Isaac Collinsโthe printer and editor of the newspaper in which the article had appearedโto reveal the author's identity. Refusing, Collins declared: "`Were I to comply I conceive I should betray the trust reposed in me, and be far from acting as a faithful guardian of the Liberty of the Press.' " at 96. Apparently, the State Assembly agreed that anonymity was protected by the freedom of the press, as it voted to support the editor and publisher by frustrating the council's orders. at 95. By 1784, the same Governor of New Jersey, William Livingston, was at work writing anonymous articles that defended the right to publish anonymously as part of the freedom of the press. Under the pseudonym "Scipio," *363 Livingston wrote several articles attacking the legislature's failure to lower taxes, and he accused a state officer of stealing or losing state funds during the British invasion of New Jersey. at 107-109; Scipio, Letter to the Printer, Feb. 24, 1784, The New-Jersey Gazette. Responding to the allegations, the officer called upon Scipio "to avow your publication, give up your real name." S. Tucker, To Scipio, Mar. 2, 1784, The New-Jersey Gazette. Livingston replied with a four-part series defending "the Liberty of the Press." Although Livingston at first defended anonymity because it encouraged authors to discuss politics without fear of reprisal, he ultimately invoked the liberty of the press as the guardian for anonymous political writing. "I hope [Tucker] is not seriously bent upon a total subversion of our political system," Scipio wrote. "And pray may not a man, in a free country, convey thro' the press his sentiments on publick grievances. without being obliged to send a certified copy of the baptismal register to prove his name." Scipio, On the Liberty of the Press IV, Apr. 26, 1784, The New-Jersey Gazette. To be sure, there was some controversy among newspaper editors over publishing anonymous articles and pamphlets. But this controversy was resolved in a manner that indicates that the freedom of the press protected an author's anonymity. The tempest began when a Federalist, writing anonymously himself, expressed fear that "emissaries" of "foreign enemies" would attempt to scuttle the Constitution by "fill[ing] the press with objections" against the proposal. Boston Independent Chronicle, Oct. 4, 1787, in 13 Documentary History of the Ratification of the Constitution 315 (J. Kaminski & G. Saladino eds. 1981) (hereinafter Documentary History). He called upon printers to refrain from publishing when the author "chooses to remain concealed." Benjamin Russell, the editor of the prominent Federalist newspaper the Massachusetts Centinel, immediately adopted a policy of refusing to publish Anti-Federalist pieces unless the *364 author provided his identity to be "handed to the publick, if required." Massachusetts Centinel, Oct. 10, 1787, A few days later, the Massachusetts Gazette announced that it would emulate the example set by the Massachusetts Centinel. Massachusetts Gazette, Oct. 16, 1787, In the same issue, the Gazette carried an article claiming that requiring an anonymous writer to leave his name with the printer, so that anyone who wished to know his identity could be informed, "appears perfectly reasonable, and is perfectly consistent with the liberty of the press." A Citizen, Massachusetts Gazette, Oct. 16, 1787, Federalists expressed similar thoughts in Philadelphia. See A Philadelphia Mechanic, Philadelphia Independent Gazetteer, Oct. 29, 1787, ; Galba, Philadelphia Independent Gazetteer, Oct. 31, 1787, The Jewel, Philadelphia Independent Gazetteer, Nov. 2, 1787, Ordinarily, the fact that some founding-era editors as a matter of policy decided not to publish anonymous articles would seem to shed little light upon what the Framers thought the government could do. The widespread criticism raised by the Anti-Federalists, however, who were the driving force behind the demand for a Bill of Rights, indicates that they believed the freedom of the press to include the right to author anonymous political articles and pamphlets.[1] That most other Americans shared this understanding is reflected in the Federalists' hasty retreat before the withering criticism of their assault on the liberty of the press. Opposition to Russell's declaration centered in Philadelphia. Three Philadelphia papers published the "Citizen" piece that had run in the Massachusetts Gazette. at *365 318-320.[2] In response, one of the leading Anti-Federalist writers, the "Federal Farmer," attacked Russell's policy: "What can be the views of those gentlemen in Boston, who countenanced the Printers in shutting up the press against a fair and free investigation of this important system in the usual way?" Letters From the Federal Farmer No. 5, Oct. 13, 1787, in 2 The Complete Anti-Federalist 254 (H. Storing ed. 1981). Another Anti-Federalist, "Philadelphiensis," also launched a substantial attack on Russell and his defenders for undermining the freedom of the press. "In this desperate situation of affairs the friends of this despotic scheme of government, were driven to the last and only alternative from which there was any probability of success; namely, the abolition of the freedom of the Press. " Philadelphiensis, Essay I, Independent Gazetteer, Nov. 7, 1787, 3 at 102. In Philadelphiensis' eyes, Federalist attempts to suppress the Anti-Federalist press by requiring the disclosure of authors' identities only foreshadowed the oppression permitted by the new Constitution. "Here we see pretty plainly through [the Federalists'] excellent regulation of the press, how things are to be carried on after the adoption of the new constitution." at 103. According to Philadelphiensis, Federalist policies had already ruined freedom in Massachusetts: "In Boston the liberty of the press is now completely abolished; and hence all other privileges and rights of the people will in a short time be destroyed." at 104. Not limited to Philadelphia, the Anti-Federalist attack was repeated widely throughout the States. In New York, one writer exclaimed that the Federalist effort to suppress anonymity *366 would "reverse the important doctrine of the freedom of the press, " whose "truth" was "universally acknowledged." Detector, New York Journal, Oct. 25, 1787, in 13 Documentary History 318. "Detector" proceeded to proclaim that Russell's policy was "the introduction of this first trait of slavery into your country!" Responding to the Federalist editorial policy, a Rhode Island AntiFederalist wrote: "The Liberty of the Press, or the Liberty which every Person in the United States at present enjoys. is a Privilege of infinite Importance for which we have fought and bled," and that the attempt by "our aristocratical Gentry, to have every Person's Name published who should write against the proposed Federal Constitution, has given many of us a just Alarm." Argus, Providence United States Chronicle, Nov. 8, 1787, -321. Edward Powars, editor of the Anti-Federalist Boston American Herald, proclaimed that his pages would remain "free and open to all parties." Boston American Herald, Oct. 15, 1787, In the Boston Independent Chronicle of Oct. 18, 1787, "Solon" accused Russell of attempting to undermine a "freedom and independence of sentiments " which "should never be checked in a free country" and was "so essential to the existance of free Governments." at 313. The controversy over Federalist attempts to prohibit anonymous political speech is significant for several reasons. First, the Anti-Federalists clearly believed the right to author and publish anonymous political articles and pamphlets was protected by the liberty of the press. Second, although printers' editorial policies did not constitute state action, the Anti-Federalists believed that the Federalists were merely flexing the governmental powers they would fully exercise upon the Constitution's ratification. Third, and perhaps most significantly, it appears that the Federalists agreed with the Anti-Federalist critique. In Philadelphia, where opposition to the ban was strongest, there is no record that any newspaper adopted the nonanonymity policy, nor that of *367 any city or State aside from Russell's Massachusetts Centinel and the Federalist Massachusetts Gazette. Moreover, these two papers' bark was worse than their bite. In the face of widespread criticism, it appears that Russell retreated from his policy and, as he put it, "`readily' " reprinted several anonymous Federalist and Anti-Federalist essays to show that claims that he had suppressed freedom of the press "`had not any foundation in truth.' " 13 Documentary History 313-314. Likewise, the Massachusetts Gazette refused to release the names of Anti-Federalist writers when requested. When Federalist attempts to ban anonymity are followed by a sharp, widespread Anti-Federalist defense in the name of the freedom of the press, and then by an open Federalist retreat on the issue, I must conclude that both Anti-Federalists and Federalists believed that the freedom of the press included the right to publish without revealing the author's name. III The historical record is not as complete or as full as I would desire. For example, there is no evidence that, after the adoption of the First Amendment, the Federal Government attempted to require writers to attach their names to political documents. Nor do we have any indication that the federal courts of the early Republic would have squashed such an effort as a violation of the First Amendment. The understanding described above, however, when viewed in light of the Framers' universal practice of publishing anonymous articles and pamphlets, indicates that the Framers shared the belief that such activity was firmly part of the freedom of the press. It is only an innovation of modern times that has permitted the regulation of anonymous speech. The large quantity of newspapers and pamphlets the Framers produced during the various crises of their generation show the remarkable extent to which the Framers relied upon anonymity. During the break with Great Britain, the *368 revolutionaries employed pseudonyms both to conceal their identity from Crown authorities and to impart a message. Often, writers would choose names to signal their point of view or to invoke specific classical and modern "crusaders in an agelong struggle against tyranny." A. Schlesinger, Prelude to Independence 35 (1958). Thus, leaders of the struggle for independence would adopt descriptive names such as "Common Sense," a "Farmer," or "A True Patriot," or historical ones such as "Cato" (a name used by many to refer to the Roman Cato and to Cato's letters), or "Mucius Scaevola." at xiiโxiii. The practice was even more prevalent during the great outpouring of political argument and commentary that accompanied the ratification of the Constitution. Besides "Publius," prominent Federalists signed their articles and pamphlets with names such as "An American Citizen," "Marcus," "A Landholder," "Americanus"; AntiFederalists replied with the pseudonyms "Cato," "Centinel," "Brutus," the "Federal Farmer," and "The Impartial Examiner." See generally 1-2 Debate on the Constitution (B. Bailyn ed. 1993). The practice of publishing one's thoughts anonymously or under pseudonym was so widespread that only two major Federalist or Anti-Federalist pieces appear to have been signed by their true authors, and they may have had special reasons to do so.[3] If the practice of publishing anonymous articles and pamphlets fell into disuse after the Ratification, one might infer that the custom of anonymous political speech arose only in response to the unusual conditions of the 1776-1787 period. *369 After all, the Revolution and the Ratification were not "elections," per se, either for candidates or for discrete issues. Records from the first federal elections indicate, however, that anonymous political pamphlets and newspaper articles remained the favorite media for expressing views on candidates. In Pennsylvania, for example, writers for or against the Federalist and Anti-Federalist candidates wrote under the names "Numa," "Pompilius," "A Friend to Agriculture, Trade, and Good Laws," "A Federal Centinel," a "Freeman," "Centinel," "A Real Patriot to All True Federalists," "A Mechanic," "Justice," "A German Federalist," and so on. See generally 1 Documentary History of the First Federal Elections 1788-1790, pp. 246-362 (M. Jensen & R. Becker eds. 1976). This appears to have been the practice in allof the major States of which we have substantial records today. See 1 at 446-464 (Massachusetts); 2 at 108-122, 175โ 229 (Maryland); 2 at 387-397 (Virginia); 3 at 204-216, 436-493 (New York). It seems that actual names were used rarely, and usually only by candidates who wanted to explain their positions to the electorate. The use of anonymous writing extended to issues as well as candidates. The ratification of the Constitution was not the only issue discussed via anonymous writings in the press. James Madison and Alexander Hamilton, for example, resorted to pseudonyms in the famous "Helvidius" and "Pacificus" debates over President Washington's declaration of neutrality in the war between the British and French. See Hamilton, Pacificus No. 1, June 29, 1793, in 15 Papers of Alexander Hamilton 33-43 (H. Syrett ed. 1969); Madison, Helvidius No. 1, Aug. 24, 1793, in 15 Papers of James Madison 66-73 (T. Mason, R. Rutland, J. Sisson eds. 1985). Anonymous writings continued in such Republican papers as the Aurora and Federalists organs such as the Gazette of the United States at least until the election of Thomas Jefferson. See generally J. Smith, Freedom's Fetters (1956). *370 IV This evidence leads me to agree with the majority's result, but not its reasoning. The majority fails to seek the original understanding of the First Amendment, and instead attempts to answer the question in this case by resorting to three approaches. First, the majority recalls the historical practice of anonymous writing from Shakespeare's works to the Federalist Papers to Mark Twain. Ante, at 341, and n. 4, 342-343, and n. 6, 357. Second, it finds that anonymous speech has an expressive value both to the speaker and to society that outweighs public interest in disclosure. Third, it finds that ง 3599.09(A) cannot survive strict scrutiny because it is a "content-based" restriction on speech. I cannot join the majority's analysis because it deviates from our settled approach to interpreting the Constitution and because it superimposes its modern theories concerning expression upon the constitutional text. Whether "great works of literature"โby Voltaire or George Eliot have been published anonymously should be irrelevant to our analysis, because it sheds no light on what the phrases "free speech" or "free press" meant to the people who drafted and ratified the First Amendment. Similarly, whether certain types of expression have "value" today has little significance; what is important is whether the Framers in 1791 believed anonymous speech sufficiently valuable to deserve the protection of the Bill of Rights. And although the majority faithfully follows our approach to "content-based" speech regulations, we need not undertake this analysis when the original understanding provides the answer. While, like Justice Scalia, I am loath to overturn a century of practice shared by almost all of the States, I believe the historical evidence from the framing outweighs recent tradition. When interpreting other provisions of the Constitution, this Court has believed itself bound by the text of the Constitution and by the intent of those who drafted and ratified it. It should hold itself to no less a standard when *371 interpreting the Speech and Press Clauses. After reviewing the weight of the historical evidence, it seems that the Framers understood the First Amendment to protect an author's right to express his thoughts on political candidates or issues in an anonymous fashion. Because the majority has adopted an analysis that is largely unconnected to the Constitution's text and history, I concur only in the judgment. |
Justice Stewart | majority | false | Francis v. Henderson | 1976-05-03T00:00:00 | null | https://www.courtlistener.com/opinion/109439/francis-v-henderson/ | https://www.courtlistener.com/api/rest/v3/clusters/109439/ | 1,976 | 1975-087 | 1 | 6 | 1 | In Davis v. United States, 411 U.S. 233, the Court held that a federal prisoner who had failed to make a timely challenge to the allegedly unconstitutional composition of the grand jury that indicted him could not after his conviction attack the grand jury's composition in an action for collateral relief under 28 U.S. C. § 2255. The question in this case is whether a state prisoner who failed to make a timely challenge to the composition of the grand jury that indicted him could after his conviction bring that challenge in a federal habeas corpus proceeding.
The petitioner, Abraham Francis, was brought to trial in a Louisiana court in 1965 upon an indictment for felony murder. He was represented by counsel provided by the State. The Louisiana law then in force clearly required that any objection by a defendant to the composition of the grand jury that had indicted him had to be made in advance of his trial. Otherwise, the law provided, "all such objections shall be considered as waived and shall not afterwards be urged or heard."[1] No such *538 objection in any form was made by or on behalf of Francis. At the ensuing trial the jury found Francis guilty, and he was sentenced to life imprisonment.
He did not appeal the conviction, but in 1971 he sought collateral relief from a state court on the ground, inter alia, that Negroes had been excluded from the grand jury that had indicted him. The court held that Francis had waived this claim when he failed to raise it before trial as required by state law, and it accordingly denied relief. Francis thereafter sought a writ of habeas corpus in the United States District Court for the Eastern District of Louisiana. The District Court granted the writ on the ground that Negroes had been impermissibly excluded from the grand jury that had returned the indictment.[2] The Court of Appeals reversed the judgment, holding that in the light of this Court's decision in the Davis case, "the Louisiana waiver provision must be given effect by the federal district courts unless there is a showing of actual prejudice." 496 F.2d 896, 899. Accordingly, the appellate court remanded the case to the District Court. We granted certiorari in order to consider a recurring and unresolved question of federal law. 421 U.S. 946.[3]
There can be no question of a federal district court's power to entertain an application for a writ of habeas corpus in a case such as this. 28 U.S. C. §§ 2241, 2254. The issue, as in the Davis case, goes rather to the appropriate *539 exercise of that power. This Court has long recognized that in some circumstances considerations of comity and concerns for the orderly administration of criminal justice require a federal court to forgo the exercise of its habeas corpus power. See Fay v. Noia, 372 U.S. 391, 425-426. The question to be decided is whether the circumstances of this case are such as to invoke the application of those considerations and concerns.
In Davis, supra, the petitioner was indicted by a federal grand jury upon a charge of attempted bank robbery. Federal Rule Crim. Proc. 12 provides that a defendant in a federal criminal case who wants to challenge the constitutional validity of the grand jury that indicted him must do so by motion before trial; otherwise he is deemed to have waived such a challenge, except for "cause shown."[4] Davis made no such motion. Almost three years after his trial and conviction, Davis brought a proceeding under 28 U.S. C. § 2255 to set aside his conviction upon the ground of unconstitutional discrimination in the composition of the grand jury that had returned the indictment against him. In holding that § 2255 relief should under these circumstances be denied, the Court said:
"We think it inconceivable that Congress, having in the criminal proceeding foreclosed the raising of a claim such as this after the commencement of trial in the absence of a showing of `cause' for relief from waiver, nonetheless intended to perversely negate the Rule's purpose by permitting an entirely different but much more liberal requirement of waiver in federal habeas proceedings. We believe that the necessary effect of the congressional adoption of Rule 12 (b) (2) is to provide that a claim *540 once waived pursuant to that Rule may not later be resurrected, either in the criminal proceedings or in federal habeas, in the absence of the showing of `cause' which that Rule requires. We therefore hold that the waiver standard expressed in Rule 12 (b) (2) governs an untimely claim of grand jury discrimination, not only during the criminal proceeding, but also later on collateral review." 411 U.S., at 242.
See also Shotwell Mfg. Co. v. United States, 371 U.S. 341, 361-364.
As the Court in Davis pointed out, a time requirement such as that contained in Rule 12 serves interests far more significant than mere judicial convenience:
"The waiver provisions of Rule 12 (b) (2) are operative only with respect to claims of defects in the institution of criminal proceedings. If its time limits are followed, inquiry into an alleged defect may be concluded and, if necessary, cured before the court, the witnesses, and the parties have gone to the burden and expense of a trial. If defendants were allowed to flout its time limitations, on the other hand, there would be little incentive to comply with its terms when a successful attack might simply result in a new indictment prior to trial. Strong tactical considerations would militate in favor of delaying the raising of the claim in hopes of an acquittal, with the thought that if those hopes did not materialize, the claim could be used to upset an otherwise valid conviction at a time when reprosecution might well be difficult." 411 U.S., at 241.
The Louisiana time limitation applicable in the present case was obviously designed to serve precisely these same important purposes, as the Court specifically recognized more than 20 years ago in a case involving this *541 very Louisiana law, Michel v. Louisiana, 350 U.S. 91. There the Court said:
"It is beyond question that under the Due Process Clause of the Fourteenth Amendment Louisiana may attach reasonable time limitations to the assertion of federal constitutional rights. More particularly, the State may require prompt assertion of the right to challenge discriminatory practices in the make-up of a grand jury." Id., at 97 (footnote omitted).
"Not only may the prompt determination of such preliminary matters avoid the necessity of a second trial, but a long delay in its determination, such as here, makes it extremely difficult in this class of case for the State to overcome the prima facie claim which may be established by a defendant. Material witnesses and grand jurors may die or leave the jurisdiction, and memories as to intent or specific practices relating to the selection of a particular grand jury may lose their sharpness. Furthermore, a successful attack on a grand jury that sat several years earlier may affect other convictions based on indictments returned by the same grand jury." Id., at 98 n. 5.
If, as Davis held, the federal courts must give effect to these important and legitimate concerns in § 2255 proceedings, then surely considerations of comity and federalism require that they give no less effect to the same clear interests when asked to overturn state criminal convictions. Those considerations require that recognition be given "to the legitimate interests of both State and National Governments, and . . . [that] the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always [endeavor] to do so in ways that will not unduly *542 interfere with the legitimate activities of the States." Younger v. Harris, 401 U.S. 37, 44. "Plainly the interest in finality is the same with regard to both federal and state prisoners. . . . There is no reason to . . . give greater preclusive effect to procedural defaults by federal defendants than to similar defaults by state defendants. To hold otherwise would reflect an anomalous and erroneous view of federal-state relations." Kaufman v. United States, 394 U.S. 217, 228.
We conclude, therefore, that the Court of Appeals was correct in holding that the rule of Davis v. United States applies with equal force when a federal court is asked in a habeas corpus proceeding to overturn a state-court conviction because of an allegedly unconstitutional grand jury indictment.[5] In a collateral attack upon a conviction that rule requires, contrary to the petitioner's assertion, not only a showing of "cause" for the defendant's failure to challenge the composition of the grand jury before trial, but also a showing of actual prejudice.[6] Accordingly, the judgment is affirmed.
It is so ordered.
MR. JUSTICE MARSHALL took no part in the decision of this case. MR. JUSTICE STEVENS took no part in the consideration or decision of this case.
MR. | In the Court held that a federal prisoner who had failed to make a timely challenge to the allegedly unconstitutional composition of the grand jury that indicted him could not after his conviction attack the grand jury's composition in an action for collateral relief under 28 U.S. C. 2255. The question in this case is whether a state prisoner who failed to make a timely challenge to the composition of the grand jury that indicted him could after his conviction bring that challenge in a federal habeas corpus proceeding. The petitioner, Abraham Francis, was brought to trial in a Louisiana court in 1965 upon an indictment for felony murder. He was represented by counsel provided by the State. The Louisiana law then in force clearly required that any objection by a defendant to the composition of the grand jury that had indicted him had to be made in advance of his trial. Otherwise, the law provided, "all such objections shall be considered as waived and shall not afterwards be urged or heard."[1] No such *538 objection in any form was made by or on behalf of Francis. At the ensuing trial the jury found Francis guilty, and he was sentenced to life imprisonment. He did not appeal the conviction, but in 1971 he sought collateral relief from a state court on the ground, inter alia, that Negroes had been excluded from the grand jury that had indicted him. The court held that Francis had waived this claim when he failed to raise it before trial as required by state law, and it accordingly denied relief. Francis thereafter sought a writ of habeas corpus in the United States District Court for the Eastern District of Louisiana. The District Court granted the writ on the ground that Negroes had been impermissibly excluded from the grand jury that had returned the indictment.[2] The Court of Appeals reversed the judgment, holding that in the light of this Court's decision in the case, "the Louisiana waiver provision must be given effect by the federal district courts unless there is a showing of actual prejudice." Accordingly, the appellate court remanded the case to the District Court. We granted certiorari in order to consider a recurring and unresolved question of federal law.[3] There can be no question of a federal district court's power to entertain an application for a writ of habeas corpus in a case such as this. 28 U.S. C. 2241, 2254. The issue, as in the case, goes rather to the appropriate *539 exercise of that power. This Court has long recognized that in some circumstances considerations of comity and concerns for the orderly administration of criminal justice require a federal court to forgo the exercise of its habeas corpus power. See The question to be decided is whether the circumstances of this case are such as to invoke the application of those considerations and concerns. In the petitioner was indicted by a federal grand jury upon a charge of attempted bank robbery. Federal Rule Crim. Proc. 12 provides that a defendant in a federal criminal case who wants to challenge the constitutional validity of the grand jury that indicted him must do so by motion before trial; otherwise he is deemed to have waived such a challenge, except for "cause shown."[4] made no such motion. Almost three years after his trial and conviction, brought a proceeding under 28 U.S. C. 2255 to set aside his conviction upon the ground of unconstitutional discrimination in the composition of the grand jury that had returned the indictment against him. In holding that 2255 relief should under these circumstances be denied, the Court said: "We think it inconceivable that Congress, having in the criminal proceeding foreclosed the raising of a claim such as this after the commencement of trial in the absence of a showing of `cause' for relief from waiver, nonetheless intended to perversely negate the Rule's purpose by permitting an entirely different but much more liberal requirement of waiver in federal habeas proceedings. We believe that the necessary effect of the congressional adoption of Rule 12 (b) (2) is to provide that a claim *540 once waived pursuant to that Rule may not later be resurrected, either in the criminal proceedings or in federal habeas, in the absence of the showing of `cause' which that Rule requires. We therefore hold that the waiver standard expressed in Rule 12 (b) (2) governs an untimely claim of grand jury discrimination, not only during the criminal proceeding, but also later on collateral review." See also Shotwell Mfg. As the Court in pointed out, a time requirement such as that contained in Rule 12 serves interests far more significant than mere judicial convenience: "The waiver provisions of Rule 12 (b) (2) are operative only with respect to claims of defects in the institution of criminal proceedings. If its time limits are followed, inquiry into an alleged defect may be concluded and, if necessary, cured before the court, the witnesses, and the parties have gone to the burden and expense of a trial. If defendants were allowed to flout its time limitations, on the other hand, there would be little incentive to comply with its terms when a successful attack might simply result in a new indictment prior to trial. Strong tactical considerations would militate in favor of delaying the raising of the claim in hopes of an acquittal, with the thought that if those hopes did not materialize, the claim could be used to upset an otherwise valid conviction at a time when reprosecution might well be difficult." The Louisiana time limitation applicable in the present case was obviously designed to serve precisely these same important purposes, as the Court specifically recognized more than 20 years ago in a case involving this *541 very Louisiana law, There the Court said: "It is beyond question that under the Due Process Clause of the Fourteenth Amendment Louisiana may attach reasonable time limitations to the assertion of federal constitutional rights. More particularly, the State may require prompt assertion of the right to challenge discriminatory practices in the make-up of a grand jury." "Not only may the prompt determination of such preliminary matters avoid the necessity of a second trial, but a long delay in its determination, such as here, makes it extremely difficult in this class of case for the State to overcome the prima facie claim which may be established by a defendant. Material witnesses and grand jurors may die or leave the jurisdiction, and memories as to intent or specific practices relating to the selection of a particular grand jury may lose their sharpness. Furthermore, a successful attack on a grand jury that sat several years earlier may affect other convictions based on indictments returned by the same grand jury." at 98 n. 5. If, as held, the federal courts must give effect to these important and legitimate concerns in 2255 proceedings, then surely considerations of comity and federalism require that they give no less effect to the same clear interests when asked to overturn state criminal convictions. Those considerations require that recognition be given "to the legitimate interests of both State and National Governments, and [that] the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always [endeavor] to do so in ways that will not unduly *542 interfere with the legitimate activities of the States." "Plainly the interest in finality is the same with regard to both federal and state prisoners. There is no reason to give greater preclusive effect to procedural defaults by federal defendants than to similar defaults by state defendants. To hold otherwise would reflect an anomalous and erroneous view of federal-state relations." We conclude, therefore, that the Court of Appeals was correct in holding that the rule of applies with equal force when a federal court is asked in a habeas corpus proceeding to overturn a state-court conviction because of an allegedly unconstitutional grand jury indictment.[5] In a collateral attack upon a conviction that rule requires, contrary to the petitioner's assertion, not only a showing of "cause" for the defendant's failure to challenge the composition of the grand jury before trial, but also a showing of actual prejudice.[6] Accordingly, the judgment is affirmed. It is so ordered. MR. JUSTICE MARSHALL took no part in the decision of this case. MR. JUSTICE STEVENS took no part in the consideration or decision of this case. MR. |
Justice Stewart | dissenting | false | United States v. Bisceglia | 1975-02-19T00:00:00 | null | https://www.courtlistener.com/opinion/109190/united-states-v-bisceglia/ | https://www.courtlistener.com/api/rest/v3/clusters/109190/ | 1,975 | 1974-041 | 2 | 7 | 2 | The Court today says that it "recogniz[es] that the authority vested in tax collectors may be abused," ante, *153 at 146, but it is nonetheless unable to find any statutory limitation upon that authority. The only "protection" from abuse that Congress has provided, it says, is "placing the federal courts between the Government and the person summoned," ante, at 151. But that, of course, is no protection at all, unless the federal courts are provided with a measurable standard when asked to enforce a summons. I agree with the Court of Appeals that Congress has provided such a standard, and that the standard was not met in this case. Accordingly, I respectfully dissent from the opinion and judgment of the Court.
Congress has carefully restricted the summons power to certain rather precisely delineated purposes:
"ascertaining the correctness of any return, making a return where none has been made, determining the liability of any person for any internal revenue tax or the liability at law or in equity of any transferee or fiduciary of any person in respect of any internal revenue tax, or collecting any such liability." 26 U.S. C. § 7602.
This provision speaks in the singularreferring to "the correctness of any return" and to "the liability of any person." The delineated purposes are jointly denominated an "inquiry" concerning "the person liable for tax or required to perform the act," and the summons is designed to facilitate the "[e]xamination of books and witnesses" which "may be relevant or material to such inquiry." 26 U.S. C. §§ 7602 (1), (2), and (3). This language indicates unmistakably that the summons power is a tool for the investigation of particular taxpayers.
By contrast, the general duties of the IRS are vastly broader than its summons authority. For instance, § 7601 mandates a "[c]anvass of districts for taxable persons and objects." Unlike § 7602, the canvassing provision *154 speaks broadly and in the plural, instructing Treasury Department officials.
"to proceed, from time to time, through each internal revenue district and inquire after and concerning all persons therein who may be liable to pay any internal revenue tax, and all persons owning or having the care and management of any objects with respect to which any tax is imposed." (Emphasis added.)
Virtually all "persons" or "objects" in this country "may," of course, have federal tax problems. Every day the economy generates thousands of sales, loans, gifts, purchases, leases, deposits, mergers, wills, and the like whichbecause of their size or complexitysuggest the possibility of tax problems for somebody. Our economy is "tax relevant" in almost every detail. Accordingly, if a summons could issue for any material conceivably relevant to "taxation"that is, relevant to the general duties of the IRSthe Service could use the summons power as a broad research device. The Service could use that power methodically to force disclosure of whole categories of transactions and closely monitor the operations of myriad segments of the economy on the theory that the information thereby accumulated might facilitate the assessment and collection of some kind of a federal tax from somebody. Cf. United States v. Humble Oil & Refining Co., 488 F.2d 953. And the Court's opinion today seems to authorize exactly that.
But Congress has provided otherwise. The Congress has recognized that information concerning certain classes of transactions is of peculiar importance to the sound administration of the tax system, but the legislative solution has not been the conferral of a limitless summons power. Instead, various special-purpose statutes have been written to require the reporting or disclosure of particular kinds of transactions. E. g., 26 U.S. C. §§ 6049, *155 6051-6053, 31 U.S. C. §§ 1081-1083, 1101, and 1121-1122, and 31 U.S. C. §§ 1141-1143 (1970 ed., Supp. III). Meanwhile, the scope of the summons power itself has been kept narrow. Congress has never made that power coextensive with the Service's broad and general canvassing duties set out in § 7601. Instead, the summons power has always been restricted to the particular purposes of individual investigation, delineated in § 7602.[1]
Thus, a financial or economic transaction is not subject to disclosure through summons merely because it is large or unusual or generally "tax relevant"but only when the summoned information is reasonably pertinent to an ongoing investigation of somebody's tax status. This restriction checks possible abuses of the summons power in two rather obvious ways. First, it guards against an *156 overbroad summons by allowing the enforcing court to prune away those demands which are not relevant to the particular, ongoing investigation. See, e. g., First Nat. Bank of Mobile v. United States, 160 F.2d 532, 533-535. Second, the restriction altogether prohibits a summons which is wholly unconnected with such an investigation.
The Court today completely obliterates the historic distinction between the general duties of the IRS, summarized in § 7601, and the limited purposes for which a summons may issue, specified in § 7602. Relying heavily on § 7601, and noting that the IRS "has a legitimate interest in large or unusual financial transactions, especially those involving cash," ante, at 149, the Court approves enforcement of a summons having no investigative predicate. The sole premise for this summons was the Service's theory that the deposit of old wornout $100 bills was a sufficiently unusual and interesting transaction to justify compulsory disclosure of the identities of all the large-amount depositors at the respondent's bank over a one-month period.[2] That the summons was not incident to an ongoing, particularized investigation, but was merely a shot in the dark to see if one might be warranted, was freely conceded by the IRS agent who served the summons.[3]
*157 The Court's opinion thus approves a breathtaking expansion of the summons power: There are obviously thousands of transactions occurring daily throughout the country which, on their face, suggest the possibility of tax complications for the unknown parties involved. These transactions will now be subject to forced disclosure at the whim of any IRS agent, so long only as he is acting in "good faith." Ante, at 146.
This is a sharp and dangerous detour from the settled course of precedent. The decision of the Court of Appeals in this case has been explicitly accepted as sound by the Courts of Appeals of two other Circuits. See United States v. Berkowitz, 488 F.2d 1235, 1236 (CA3), and United States v. Humble Oil & Refining Co., 488 F.2d 953, 960 (CA5), cert. pending, No. 73-1827. No federal court has disagreed with it.
The federal courts have always scrutinized with particular care any IRS summons directed to a "third party," i. e., to a party other than the taxpayer under investigation. See, e. g., United States v. Humble Oil & Refining Co., supra, at 963; Venn v. United States, 400 F.2d 207, 211-212; United States v. Harrington, 388 F.2d 520, 523. When, as here, the third-party summons does not identify the party under investigation, a presumption naturally arises that the summons is not genuinely investigative but merely exploratorya device for general research or for the hit-or-miss monitoring of "unusual" transactions. Unless this presumption is rebutted by the Service, the courts have denied enforcement.
Thus, the IRS was not permitted to summon from a bank the names and addresses of all beneficiaries of certain *158 types of trust arrangements merely on the theory that these arrangements were unusual in form or size. Mays v. Davis, 7 F. Supp. 596. Nor could the Service force a company to disclose the identity of whole classes of its oil land lessees merely on the theory that oil lessees commonly have tax problems. United States v. Humble Oil & Refining Co., supra. See also McDonough v. Lambert, 94 F.2d 838; First Nat. Bank of Mobile v. United States, 160 F. 2d, at 533-535; Teamsters v. United States, 240 F.2d 387, 390.
On the other hand, enforcement has been granted where the Service has been able to demonstrate that the John Doe summons was issued incident to an ongoing and particularized investigation. Thus, enforcement was granted of summonses seeking to identify the clients of those tax-return-preparation firms which prior investigation had shown to be less than honest or accurate in the preparation of sample returns. United States v. Theodore, 479 F.2d 749; United States v. Turner, 480 F.2d 272; United States v. Berkowitz, supra; United States v. Carter, 489 F.2d 413. Similarly, enforcement was granted of summonses directed to an attorney, and his bank, seeking to identify the client for whom the attorney had mailed to the IRS a large, anonymous check, purporting to satisfy an outstanding tax deficiency of the client. Tillotson v. Boughner 333 F.2d 515; Schulze v. Rayunec, 350 F.2d 666. Like the prior investigative work in the tax-return-preparer cases, the receipt of the mysterious check established the predicate of a particularized investigation which was necessary, under § 7602, to the enforcement of a summons. In each case, the Service had already proceeded to the point where the unknown individual's tax liability had become a reasonable possibility, rather than a matter of sheer speculation.
Today's decision shatters this long line of precedent. *159 For this summons, there was absolutely no investigative predicate. The sole indication of this John Doe's tax liability was the unusual character of the deposit transaction itself. Any private economic transaction is now fair game for forced disclosure, if any IRS agent happens in good faith to want it disclosed. This new rule simply disregards the language of § 7602 and the body of established case law construing it.
The Court's attempt to justify this extraordinary departure from established law is hardly persuasive. The Court first notes that a witness may not refuse testimony to a grand jury merely because the grand jury has not yet specified the "identity of the offender," ante, at 147, quoting Blair v. United States, 250 U.S. 273, 282. This is true but irrelevant. The IRS is not a grand jury. It is a creature not of the Constitution but of legislation and is thus peculiarly subject to legislative constraints. See In re Groban, 352 U.S. 330, 346 (Black, J., dissenting). It is true that the Court drew an analogy between an IRS summons and a grand jury subpoena in United States v. Powell, 379 U.S. 48, 57, but this was merely to emphasize that an IRS summons does not require the support of "probable cause" to suspect tax fraud when the summons is issued incident to an ongoing, individualized investigation of an identified party. A major premise of Powell was that an extrastatutory "probable cause" requirement was unnecessary in view of the "legitimate purpose" requirements already specified in § 7602, 379 U.S., at 56-57.
The Court next suggests that this expansion of the summons power is innocuous, at least on the facts of this case, because the Bank Secrecy Act of 1970[4] itself compels *160 banks to disclose the identity of certain cash depositors. Ante, at 149-150. Aside from the fact that the summons at issue here forces disclosure of some deposits not covered by the Act and its attendant regulations,[5] the argument has a more basic flaw. If the summons authority of § 7602 allows preinvestigative inquiry into any large or unusual bank deposit, the 1970 Act was largely redundant. The IRS could have saved Congress months of hearings and debates by simply directing § 7602 summonses on a regular basis to the Nation's banks, demanding the identities of their large cash depositors. In California Bankers Assn. v. Shultz, 416 U.S. 21, we gave extended consideration to the complex constitutional issues raised by the 1970 Act; some of those issuese. g., whether and to what extent bank depositors have Fourth Amendment and Fifth Amendment rights to the secrecy of their domestic depositswere left unresolved by the Court's opinion, 416 U.S., at 67-75. If the disclosure requirements in the 1970 Act were already encompassed within the Service's summons power, one must wonder why the Court labored so long and carefully in Shultz.
Finally, the Court suggests that respect for the plain language of § 7602 would "undermine the efficacy of the federal tax system, which seeks to assure that taxpayers pay what Congress has mandated and prevents dishonest persons from escaping taxation and thus shifting heavier burdens to honest taxpayers." Ante, at 146. But the federal courts have applied the strictures of § 7602, and its predecessors, for many decades without occasioning these *161 dire effects. If such a danger exists, Congress can deal with it. But until Congress changes the provision of § 7602, it is our duty to apply the statute as it is written.
I would affirm the judgment of the Court of Appeals.
| The Court today says that it "recogniz[es] that the authority vested in tax collectors may be abused," ante, *153 at 146, but it is nonetheless unable to find any statutory limitation upon that authority. The only "protection" from abuse that Congress has provided, it says, is "placing the federal courts between the Government and the person summoned," ante, at 151. But that, of course, is no protection at all, unless the federal courts are provided with a measurable standard when asked to enforce a summons. I agree with the Court of Appeals that Congress has provided such a standard, and that the standard was not met in this case. Accordingly, I respectfully dissent from the and judgment of the Court. Congress has carefully restricted the summons power to certain rather precisely delineated purposes: "ascertaining the correctness of any return, making a return where none has been made, determining the liability of any person for any internal revenue tax or the liability at law or in equity of any transferee or fiduciary of any person in respect of any internal revenue tax, or collecting any such liability." 26 U.S. C. This provision speaks in the singularreferring to "the correctness of any return" and to "the liability of any person." The delineated purposes are jointly denominated an "inquiry" concerning "the person liable for tax or required to perform the act," and the summons is designed to facilitate the "[e]xamination of books and witnesses" which "may be relevant or material to such inquiry." 26 U.S. C. (1), (2), and (3). This language indicates unmistakably that the summons power is a tool for the investigation of particular taxpayers. By contrast, the general duties of the IRS are vastly broader than its summons authority. For instance, 7601 mandates a "[c]anvass of districts for taxable persons and objects." Unlike the canvassing provision *154 speaks broadly and in the plural, instructing Treasury Department officials. "to proceed, from time to time, through each internal revenue district and inquire after and concerning all persons therein who may be liable to pay any internal revenue tax, and all persons owning or having the care and management of any objects with respect to which any tax is imposed." (Emphasis added.) Virtually all "persons" or "objects" in this country "may," of course, have federal tax problems. Every day the economy generates thousands of sales, loans, gifts, purchases, leases, deposits, mergers, wills, and the like whichbecause of their size or complexitysuggest the possibility of tax problems for somebody. Our economy is "tax relevant" in almost every detail. Accordingly, if a summons could issue for any material conceivably relevant to "taxation"that is, relevant to the general duties of the IRSthe Service could use the summons power as a broad research device. The Service could use that power methodically to force disclosure of whole categories of transactions and closely monitor the operations of myriad segments of the economy on the theory that the information thereby accumulated might facilitate the assessment and collection of some kind of a federal tax from somebody. Cf. United And the Court's today seems to authorize exactly that. But Congress has provided otherwise. The Congress has recognized that information concerning certain classes of transactions is of peculiar importance to the sound administration of the tax system, but the legislative solution has not been the conferral of a limitless summons power. Instead, various special-purpose statutes have been written to require the reporting or disclosure of particular kinds of transactions. E. g., 26 U.S. C. 6049, *155 6051-6053, 31 U.S. C. 1081-1083, 1101, and 1121-1122, and 31 U.S. C. 1141-1143 (1970 ed., Supp. III). Meanwhile, the scope of the summons power itself has been kept narrow. Congress has never made that power coextensive with the Service's broad and general canvassing duties set out in 7601. Instead, the summons power has always been restricted to the particular purposes of individual investigation, delineated in[1] Thus, a financial or economic transaction is not subject to disclosure through summons merely because it is large or unusual or generally "tax relevant"but only when the summoned information is reasonably pertinent to an ongoing investigation of somebody's tax status. This restriction checks possible abuses of the summons power in two rather obvious ways. First, it guards against an *156 overbroad summons by allowing the enforcing court to prune away those demands which are not relevant to the particular, ongoing investigation. See, e. g., First Nat. Bank of Second, the restriction altogether prohibits a summons which is wholly unconnected with such an investigation. The Court today completely obliterates the historic distinction between the general duties of the IRS, summarized in 7601, and the limited purposes for which a summons may issue, specified in Relying heavily on 7601, and noting that the IRS "has a legitimate interest in large or unusual financial transactions, especially those involving cash," ante, at 149, the Court approves enforcement of a summons having no investigative predicate. The sole premise for this summons was the Service's theory that the deposit of old wornout $100 bills was a sufficiently unusual and interesting transaction to justify compulsory disclosure of the identities of all the large-amount depositors at the respondent's bank over a one-month period.[2] That the summons was not incident to an ongoing, particularized investigation, but was merely a shot in the dark to see if one might be warranted, was freely conceded by the IRS agent who served the summons.[3] *1 The Court's thus approves a breathtaking expansion of the summons power: There are obviously thousands of transactions occurring daily throughout the country which, on their face, suggest the possibility of tax complications for the unknown parties involved. These transactions will now be subject to forced disclosure at the whim of any IRS agent, so long only as he is acting in "good faith." Ante, at 146. This is a sharp and dangerous detour from the settled course of precedent. The decision of the Court of Appeals in this case has been explicitly accepted as sound by the Courts of Appeals of two other Circuits. See United (CA3), and United (CA5), cert. pending, No. 73-1827. No federal court has disagreed with it. The federal courts have always scrutinized with particular care any IRS summons directed to a "third party," i. e., to a party other than the taxpayer under investigation. See, e. g., United ; ; United When, as here, the third-party summons does not identify the party under investigation, a presumption naturally arises that the summons is not genuinely investigative but merely exploratorya device for general research or for the hit-or-miss monitoring of "unusual" transactions. Unless this presumption is rebutted by the Service, the courts have denied enforcement. Thus, the IRS was not permitted to summon from a bank the names and addresses of all beneficiaries of certain *158 types of trust arrangements merely on the theory that these arrangements were unusual in form or size. Nor could the Service force a company to disclose the identity of whole classes of its oil land lessees merely on the theory that oil lessees commonly have tax problems. United See also ; First Nat. Bank of 160 F. 2d, at ; On the other hand, enforcement has been granted where the Service has been able to demonstrate that the John Doe summons was issued incident to an ongoing and particularized investigation. Thus, enforcement was granted of summonses seeking to identify the clients of those tax-return-preparation firms which prior investigation had shown to be less than honest or accurate in the preparation of sample returns. United ; United ; United United Similarly, enforcement was granted of summonses directed to an attorney, and his bank, seeking to identify the client for whom the attorney had mailed to the IRS a large, anonymous check, purporting to satisfy an outstanding tax deficiency of the client. ; Like the prior investigative work in the tax-return-preparer cases, the receipt of the mysterious check established the predicate of a particularized investigation which was necessary, under to the enforcement of a summons. In each case, the Service had already proceeded to the point where the unknown individual's tax liability had become a reasonable possibility, rather than a matter of sheer speculation. Today's decision shatters this long line of precedent. *159 For this summons, there was absolutely no investigative predicate. The sole indication of this John Doe's tax liability was the unusual character of the deposit transaction itself. Any private economic transaction is now fair game for forced disclosure, if any IRS agent happens in good faith to want it disclosed. This new rule simply disregards the language of and the body of established case law construing it. The Court's attempt to justify this extraordinary departure from established law is hardly persuasive. The Court first notes that a witness may not refuse testimony to a grand jury merely because the grand jury has not yet specified the "identity of the offender," ante, at 147, quoting This is true but irrelevant. The IRS is not a grand jury. It is a creature not of the Constitution but of legislation and is thus peculiarly subject to legislative constraints. See In re Groban, (Black, J., dissenting). It is true that the Court drew an analogy between an IRS summons and a grand jury subpoena in United but this was merely to emphasize that an IRS summons does not require the support of "probable cause" to suspect tax fraud when the summons is issued incident to an ongoing, individualized investigation of an identified party. A major premise of Powell was that an extrastatutory "probable cause" requirement was unnecessary in view of the "legitimate purpose" requirements already specified in -. The Court next suggests that this expansion of the summons power is innocuous, at least on the facts of this case, because the Bank Secrecy Act of 1970[4] itself compels *160 banks to disclose the identity of certain cash depositors. Ante, at 149-150. Aside from the fact that the summons at issue here forces disclosure of some deposits not covered by the Act and its attendant regulations,[5] the argument has a more basic flaw. If the summons authority of allows preinvestigative inquiry into any large or unusual bank deposit, the 1970 Act was largely redundant. The IRS could have saved Congress months of hearings and debates by simply directing summonses on a regular basis to the Nation's banks, demanding the identities of their large cash depositors. In California Bankers we gave extended consideration to the complex constitutional issues raised by the 1970 Act; some of those issuese. g., whether and to what extent bank depositors have Fourth Amendment and Fifth Amendment rights to the secrecy of their domestic depositswere left unresolved by the Court's -75. If the disclosure requirements in the 1970 Act were already encompassed within the Service's summons power, one must wonder why the Court labored so long and carefully in Shultz. Finally, the Court suggests that respect for the plain language of would "undermine the efficacy of the federal tax system, which seeks to assure that taxpayers pay what Congress has mandated and prevents dishonest persons from escaping taxation and thus shifting heavier burdens to honest taxpayers." Ante, at 146. But the federal courts have applied the strictures of and its predecessors, for many decades without occasioning these *161 dire effects. If such a danger exists, Congress can deal with it. But until Congress changes the provision of it is our duty to apply the statute as it is written. I would affirm the judgment of the Court of Appeals. |
Justice Brennan | majority | false | Weinberger v. Wiesenfeld | 1975-03-19T00:00:00 | null | https://www.courtlistener.com/opinion/109218/weinberger-v-wiesenfeld/ | https://www.courtlistener.com/api/rest/v3/clusters/109218/ | 1,975 | 1974-070 | 2 | 8 | 0 | Social Security Act benefits based on the earnings of a deceased husband and father covered by the Act are payable, with some limitations, both to the widow and to the couple's minor children in her care. § 202 (g) of the Social Security Act, as amended, 42 U.S. C. § 402 (g).[1] Such benefits are payable on the basis of the *638 earnings of a deceased wife and mother covered by the Act, however, only to the minor children and not to the widower. The question in this case is whether this gender-based distinction violates the Due Process Clause of the Fifth Amendment.[2]
A three-judge District Court for the District of New Jersey held that the different treatment of men and women mandated by § 402 (g) unjustifiably discriminated against female wage earners by affording them less protection for their survivors than is provided to male employees. *639 367 F. Supp. 981, 991 (1973). We noted probable jurisdiction, 419 U.S. 822 (1974). We affirm.
I
Appellee Stephen C. Wiesenfeld and Paula Polatschek were married on November 15, 1970. Paula, who worked as a teacher for five years before her marriage, continued teaching after her marriage. Each year she worked, maximum social security contributions were deducted from her salary.[3] Paula's earnings were the couple's principal source of support during the marriage, being substantially larger than those of appellee.[4]
On June 5, 1972, Paula died in childbirth. Appellee was left with the sole responsibility for the care of their infant son, Jason Paul. Shortly after his wife's death, Stephen Wiesenfeld applied at the Social Security office in New Brunswick, N. J., for social security survivors' benefits for himself and his son. He did obtain benefits for his son under 42 U.S. C. § 402 (d) (1970 ed. and Supp. III),[5] and received for Jason $206.90 per month *640 until September 1972, and $248.30 per month thereafter. However, appellee was told that he was not eligible for benefits for himself, because § 402 (g) benefits were available only to women.[6] If he had been a woman, he would *641 have received the same amount as his son as long as he was not working, see 42 U.S. C. §§ 402 (d) (2) and (g) (2), and, if working, that amount reduced by $1 for every $2 earned annually above $2,400. 42 U.S. C. §§ 403 (b) and (f).[7]
Appellee filed this suit in February 1973,[8] claiming jurisdiction under 28 U.S. C. § 1331, on behalf of himself and of all widowers similarly situated.[9] He sought a declaration that § 402 (g) is unconstitutional to the extent that men and women are treated differently, an injunction *642 restraining appellant from denying benefits under § 402 (g) solely on the basis of sex, and payment of past benefits commencing with June 1972, the month of the original application. Cross motions for summary judgment were filed. After the three-judge court determined that it had jurisdiction,[10] it granted summary judgment in favor of appellee, and issued an order giving appellee the relief he sought.
II
The gender-based distinction made by § 402 (g) is indistinguishable from that invalidated in Frontiero v. *643 Richardson, 411 U.S. 677 (1973). Frontiero involved statutes which provided the wife of a male serviceman with dependents' benefits but not the husband of a servicewoman unless she proved that she supplied more than one-half of her husband's support. The Court held that the statutory scheme violated the right to equal protection secured by the Fifth Amendment. Schlesinger v. Ballard, 419 U.S. 498 (1975), explained: "In . . . Frontiero the challenged [classification] based on sex [was] premised on overbroad generalizations that could not be tolerated under the Constitution. . . . [T]he assumption. . . was that female spouses of servicemen would normally be dependent upon their husbands, while male spouses of servicewomen would not." Id., at 507. A virtually identical "archaic and overbroad" generalization, id., at 508, "not . . . tolerated under the Constitution" underlies the distinction drawn by § 402 (g), namely, that male workers' earnings are vital to the support of their families, while the earnings of female wage earners do not significantly contribute to their families' support.[11]
Section 402 (g) was added to the Social Security Act in 1939 as one of a large number of amendments designed to "afford more adequate protection to the family as a unit." H. R. Rep. No. 728, 76th Cong., 1st Sess., 7 (1939). Monthly benefits were provided to wives, children, widows, orphans, and surviving dependent parents of covered workers. Ibid. However, children of covered female workers were eligible for survivors' benefits only in limited circumstances, see n. 5, supra, and no benefits *644 whatever were made available to husbands or widowers on the basis of their wives' covered employment.[12]
Underlying the 1939 scheme was the principle that "[u]nder a social-insurance plan the primary purpose is to pay benefits in accordance with the probable needs of the beneficiaries rather than to make payments to the estate of a deceased person regardless of whether or not he leaves dependents." H. R. Rep. No. 728, supra, at 7. (Emphasis supplied.) It was felt that "[t]he payment of these survivorship benefits and supplements for the wife of an annuitant are . . . in keeping with the principle of social insurance . . . ." Ibid. Thus, the framers of the Act legislated on the "then generally accepted presumption that a man is responsible for the support of his wife and children." D. Hoskins & L. Bixby, Women and Social Security: Law and Policy in Five Countries, Social Security Administration Research Report No. 42, p. 77 (1973).[13]
*645 Obviously, the notion that men are more likely than women to be the primary supporters of their spouses and children is not entirely without empirical support. See Kahn v. Shevin, 416 U.S. 351, 354 n. 7 (1974). But such a gender-based generalization cannot suffice to justify the denigration of the efforts of women who do work and whose earnings contribute significantly to their families' support.
Section 402 (g) clearly operates, as did the statutes invalidated by our judgment in Frontiero, to deprive women of protection for their families which men receive as a result of their employment. Indeed, the classification here is in some ways more pernicious. First, it was open to the servicewoman under the statutes invalidated in Frontiero to prove that her husband was in fact dependent upon her. Here, Stephen Wiesenfeld was not given the opportunity to show, as may well have been the case, that he was dependent upon his wife for his support, or that, had his wife lived, she would have remained at work while he took over care of the child. Second, in this case social security taxes were deducted from Paula's salary during the years in which she worked. Thus, she not only failed to receive for her family the same protection which a similarly situated male worker would have received, but she also was deprived of a portion of her own earnings in order to contribute to the fund out of which benefits would be paid to others. Since the Constitution forbids the gender-based differentiation premised upon assumptions as to dependency made in the statutes before us in Frontiero, the Constitution also forbids the gender-based differentiation that results in the efforts of female workers required to pay social security taxes producing less protection for their families than is produced by the efforts of men.
*646 III
Appellant seeks to avoid this conclusion with two related arguments. First, he claims that because social security benefits are not compensation for work done, Congress is not obliged to provide a covered female employee with the same benefits as it provides to a male. Second, he contends that § 402 (g) was "reasonably designed to offset the adverse economic situation of women by providing a widow with financial assistance to supplement or substitute for her own efforts in the marketplace," Brief for Appellant 14, and therefore does not contravene the equal protection guarantee.
A
Appellant relies for the first proposition primarily on Flemming v. Nestor, 363 U.S. 603 (1960). We held in Flemming that the interest of a covered employee in future social security benefits is "noncontractual," because "each worker's benefits, though flowing from the contributions he made to the national economy while actively employed, are not dependent on the degree to which he was called upon to support the system by taxation." Id., at 609-610. Appellant apparently contends that since benefits derived from the social security program do not correlate necessarily with contributions made to the program, a covered employee has no right whatever to be treated equally with other employees as regards the benefits which flow from his or her employment.
We do not see how the fact that social security benefits are "noncontractual" can sanction differential protection for covered employees which is solely gender based. From the outset, social security old age, survivors', and disability (OASDI) benefits have been "afforded as a matter of right, related to past participation in the productive *647 processes of the country." Final Report of the Advisory Council on Social Security 17 (1938). It is true that social security benefits are not necessarily related directly to tax contributions, since the OASDI system is structured to provide benefits in part according to presumed need.[14] For this reason, Flemming held that the position of a covered employee "cannot be soundly analogized to that of the holder of an annuity, whose right to benefits is bottomed on his contractual premium payments." 363 U.S., at 610. But the fact remains that the statutory right to benefits is directly related to years worked and amount earned by a covered employee,[15] and not to the need of the beneficiaries directly. Since OASDI benefits do depend significantly upon the participation in the work force of a covered employee, and since only covered employees and not others are required to pay taxes toward the system, benefits must be distributed according to classifications which do not without sufficient justification differentiate among covered employees solely on the basis of sex.
*648 B
Appellant seeks to characterize the classification here as one reasonably designed to compensate women beneficiaries as a group for the economic difficulties which still confront women who seek to support themselves and their families. The Court held in Kahn v. Shevin, 416 U. S., at 355, that a statute "reasonably designed to further the state policy of cushioning the financial impact of spousal loss upon the sex for which that loss imposes a disproportionately heavy burden" can survive an equal protection attack. See also Schlesinger v. Ballard, 419 U.S. 498 (1975). But the mere recitation of a benign, compensatory purpose is not an automatic shield which protects against any inquiry into the actual purposes underlying a statutory scheme.[16] Here, it is apparent both from the statutory scheme itself and from the legislative history of § 402 (g) that Congress' purpose in providing benefits to young widows with children was not to provide an income to women who were, because of economic discrimination, unable to provide for themselves. Rather, § 402 (g), linked as it is directly to responsibility for minor children, was intended to permit women to elect not to work and to devote themselves to the care of children. Since this purpose in no way is premised upon any special disadvantages of women, it cannot serve to justify a gender-based distinction which diminishes the protection afforded to women who do work.
That the purpose behind § 402 (g) is to provide children *649 deprived of one parent with the opportunity for the personal attention of the other could not be more clear in the legislative history. The Advisory Council on Social Security, which developed the 1939 amendments, said explicitly that "[s]uch payments [under § 402 (g)] are intended as supplements to the orphans' benefits with the purpose of enabling the widow to remain at home and care for the children." Final Report of the Advisory Council on Social Security 31 (1938). (Emphasis supplied.) In 1971, a new Advisory Council, considering amendments to eliminate the various gender-based distinctions in the OASDI structure, reiterated this understanding: "Present law provides benefits for the mother of young . . . children . . . if she chooses to stay home and care for the children instead of working. In the Council's judgment, it is desirable to allow a woman who is left with the care of the children the choice of whether to stay at home to care for the children or to work." 1971 Advisory Council on Social Security, Reports on the Old-Age, Survivors, and Disability Insurance and Medicare Programs 30 (hereinafter 1971 Reports). (Emphasis supplied.)
Indeed, consideration was given in 1939 to extending benefits to all widows regardless of whether or not there were minor children. The proposal was rejected, apparently because it was felt that young widows without children can be expected to work, while middle-aged widows "are likely to have more savings than younger widows and many of them have children who are grown and able to help them." Report of the Social Security Board, H. R. Doc. No. 110, 76th Cong., 1st Sess., 7-8 (1939). See also Final Report of the Advisory Council on Social Security 31 (1938); Hearings on the Social Security Act Amendments of 1939 before the House Committee on Ways and Means, 76th Cong., 1st Sess., 61, 1217, 2169-2170; H. R. Rep. No. 728, 76th Cong., 1st Sess., 36-37 *650 (1939). Thus, Congress decided not to provide benefits to all widows even though it was recognized that some of them would have serious problems in the job market. Instead, it provided benefits only to those women who had responsibility for minor children, because it believed that they should not be required to work.
The whole structure of survivors' benefits conforms to this articulated purpose. Widows without minor children obtain no benefits on the basis of their husband's earnings until they reach age 60 or, in certain instances of disability, age 50. 42 U.S. C. §§ 402 (e) (1) and (5). Further, benefits under § 402 (g) cease when all children of a beneficiary are no longer eligible for children's benefits.[17] If Congress were concerned with providing women with benefits because of economic discrimination, it would be entirely irrational to except those women who had spent many years at home rearing children, since those women are most likely to be without the skills required to succeed in the job market. See Walker, Sex Discrimination in Government Benefit Programs, 23 Hastings L. J. 277, 278-279 (1971); Hearings, supra, at 61 (remarks of Dr. Altemeyer, Chairman, Social Security Board); Report of the Committee on Social Insurance and Taxes, The President's Commission on the Status of Women 31-32 (1963). Similarly, the Act now provides benefits to a surviving *651 divorced wife who is the parent of a covered employee's child, regardless of how long she was married to the deceased or of whether she or the child was dependent upon the employee for support. §§ 402 (g), 416 (d) (3). Yet, a divorced wife who is not the mother of a child entitled to children's benefits is eligible for benefits only if she meets other eligibility requirements and was married to the covered employee for 20 years. §§ 402 (b) and (e), 416 (d).[18] Once again, this distinction among women is explicable only because Congress was not concerned in § 402 (g) with the employment problems of women generally but with the principle that children of covered employees are entitled to the personal attention of the surviving parent if that parent chooses not to work.
Given the purpose of enabling the surviving parent to remain at home to care for a child, the gender-based distinction of § 402 (g) is entirely irrational. The classification discriminates among surviving children solely on the basis of the sex of the surviving parent. Even in the typical family hypothesized by the Act, in which the husband is supporting the family and the mother is caring for the children, this result makes no sense. The fact *652 that a man is working while there is a wife at home does not mean that he would, or should be required to, continue to work if his wife dies. It is no less important for a child to be cared for by its sole surviving parent when that parent is male rather than female. And a father, no less than a mother, has a constitutionally protected right to the "companionship, care, custody, and management" of "the children he has sired and raised, [which] undeniably warrants deference and, absent a powerful countervailing interest, protection." Stanley v. Illinois, 405 U.S. 645, 651 (1972). Further, to the extent that women who work when they have sole responsibility for children encounter special problems, it would seem that men with sole responsibility for children will encounter the same child-care related problems.[19] Stephen Wiesenfeld, for example, found that providing adequate care for his infant son impeded his ability to work, see n. 7, supra.
Finally, to the extent that Congress legislated on the presumption that women as a group would choose to forgo work to care for children while men would not,[20]*653 the statutory structure, independent of the gender-based classification, would deny or reduce benefits to those men who conform to the presumed norm and are not hampered by their child-care responsibilities. Benefits under § 402 (g) decrease with increased earnings, see, supra, at 641. According to appellant, "the bulk of male workers would receive no benefits in any event," Brief for Appellant 17 n. 11, because they earn too much. Thus, the gender-based distinction is gratuitous; without it, the statutory scheme would only provide benefits to those men who are in fact similarly situated to the women the statute aids.
Since the gender-based classification of § 402 (g) cannot be explained as an attempt to provide for the special problems of women, it is indistinguishable from the classification held invalid in Frontiero. Like the statutes there, "[b]y providing dissimilar treatment for men and women who are . . . similarly situated, the challenged section violates the [Due Process] Clause." Reed v. Reed, 404 U.S. 71, 77 (1971).
Affirmed.
MR. JUSTICE DOUGLAS took no part in the consideration or decision of this case.
*654 MR. | Social Security Act benefits based on the earnings of a deceased husband and father covered by the Act are payable, with some limitations, both to the widow and to the couple's minor children in her care. 202 (g) of the Social Security Act, as amended, 42 U.S. C. 402 (g).[1] Such benefits are payable on the basis of the *638 earnings of a deceased wife and mother covered by the Act, however, only to the minor children and not to the widower. The question in this case is whether this gender-based distinction violates the Due Process Clause of the Fifth Amendment.[2] A three-judge District Court for the District of New Jersey held that the different treatment of men and women mandated by 402 (g) unjustifiably discriminated against female wage earners by affording them less protection for their survivors than is provided to male employees. *639 We noted probable jurisdiction, We affirm. I Appellee Stephen C. Wiesenfeld and Paula Polatschek were married on November 1, 190. Paula, who worked as a teacher for five years before her marriage, continued teaching after her marriage. Each year she worked, maximum social security contributions were deducted from her salary.[3] Paula's earnings were the couple's principal source of support during the marriage, being substantially larger than those of appellee.[4] On June 192, Paula died in childbirth. Appellee was left with the sole responsibility for the care of their infant son, Jason Paul. Shortly after his wife's death, Stephen Wiesenfeld applied at the Social Security office in New Brunswick, N. J., for social security survivors' benefits for himself and his son. He did obtain benefits for his son under 42 U.S. C. 402 (d) (190 ed. and Supp. III),[] and received for Jason $206.90 per month *640 until September 192, and $248.30 per month thereafter. However, appellee was told that he was not eligible for benefits for himself, because 402 (g) benefits were available only to women.[6] If he had been a woman, he would *641 have received the same amount as his son as long as he was not working, see 42 U.S. C. 402 (d) (2) and (g) (2), and, if working, that amount reduced by $1 for every $2 earned annually above $2,400. 42 U.S. C. 403 (b) and (f).[] Appellee filed this suit in February[8] claiming jurisdiction under 28 U.S. C. 1331, on behalf of himself and of all widowers similarly situated.[9] He sought a declaration that 402 (g) is unconstitutional to the extent that men and women are treated differently, an injunction *642 restraining appellant from denying benefits under 402 (g) solely on the basis of sex, and payment of past benefits commencing with June 192, the month of the original application. Cross motions for summary judgment were filed. After the three-judge court determined that it had jurisdiction,[10] it granted summary judgment in favor of appellee, and issued an order giving appellee the relief he sought. II The gender-based distinction made by 402 (g) is indistinguishable from that invalidated in Frontiero involved statutes which provided the wife of a male serviceman with dependents' benefits but not the husband of a servicewoman unless she proved that she supplied more than one-half of her husband's support. The Court held that the statutory scheme violated the right to equal protection secured by the Fifth Amendment. explained: "In Frontiero the challenged [classification] based on sex [was] premised on overbroad generalizations that could not be tolerated under the Constitution. [T]he assumption. was that female spouses of servicemen would normally be dependent upon their husbands, while male spouses of servicewomen would not." A virtually identical "archaic and overbroad" generalization, "not tolerated under the Constitution" underlies the distinction drawn by 402 (g), namely, that male workers' earnings are vital to the support of their families, while the earnings of female wage earners do not significantly contribute to their families' support.[11] Section 402 (g) was added to the Social Security Act in 1939 as one of a large number of amendments designed to "afford more adequate protection to the family as a unit." H. R. Rep. No. 28, 6th Cong., 1st Sess., (1939). Monthly benefits were provided to wives, children, widows, orphans, and surviving dependent parents of covered workers. However, children of covered female workers were eligible for survivors' benefits only in limited circumstances, see n. and no benefits *644 whatever were made available to husbands or widowers on the basis of their wives' covered employment.[12] Underlying the 1939 scheme was the principle that "[u]nder a social-insurance plan the primary purpose is to pay benefits in accordance with the probable needs of the beneficiaries rather than to make payments to the estate of a deceased person regardless of whether or not he leaves dependents." H. R. Rep. No. 28, (Emphasis supplied.) It was felt that "[t]he payment of these survivorship benefits and supplements for the wife of an annuitant are in keeping with the principle of social insurance" Thus, the framers of the Act legislated on the "then generally accepted presumption that a man is responsible for the support of his wife and children." D. Hoskins & L. Bixby, Women and Social Security: Law and Policy in Five Countries, Social Security Administration Research Report No. 42, p.[13] *64 Obviously, the notion that men are more likely than women to be the primary supporters of their spouses and children is not entirely without empirical support. See 416 U.S. 31, 34 n. But such a gender-based generalization cannot suffice to justify the denigration of the efforts of women who do work and whose earnings contribute significantly to their families' support. Section 402 (g) clearly operates, as did the statutes invalidated by our judgment in Frontiero, to deprive women of protection for their families which men receive as a result of their employment. Indeed, the classification here is in some ways more pernicious. First, it was open to the servicewoman under the statutes invalidated in Frontiero to prove that her husband was in fact dependent upon her. Here, Stephen Wiesenfeld was not given the opportunity to show, as may well have been the case, that he was dependent upon his wife for his support, or that, had his wife lived, she would have remained at work while he took over care of the child. Second, in this case social security taxes were deducted from Paula's salary during the years in which she worked. Thus, she not only failed to receive for her family the same protection which a similarly situated male worker would have received, but she also was deprived of a portion of her own earnings in order to contribute to the fund out of which benefits would be paid to others. Since the Constitution forbids the gender-based differentiation premised upon assumptions as to dependency made in the statutes before us in Frontiero, the Constitution also forbids the gender-based differentiation that results in the efforts of female workers required to pay social security taxes producing less protection for their families than is produced by the efforts of men. *646 III Appellant seeks to avoid this conclusion with two related arguments. First, he claims that because social security benefits are not compensation for work done, Congress is not obliged to provide a covered female employee with the same benefits as it provides to a male. Second, he contends that 402 (g) was "reasonably designed to offset the adverse economic situation of women by providing a widow with financial assistance to supplement or substitute for her own efforts in the marketplace," Brief for Appellant 14, and therefore does not contravene the equal protection guarantee. A Appellant relies for the first proposition primarily on We held in Flemming that the interest of a covered employee in future social security benefits is "noncontractual," because "each worker's benefits, though flowing from the contributions he made to the national economy while actively employed, are not dependent on the degree to which he was called upon to support the system by taxation." Appellant apparently contends that since benefits derived from the social security program do not correlate necessarily with contributions made to the program, a covered employee has no right whatever to be treated equally with other employees as regards the benefits which flow from his or her employment. We do not see how the fact that social security benefits are "noncontractual" can sanction differential protection for covered employees which is solely gender based. From the outset, social security old age, survivors', and disability (OASDI) benefits have been "afforded as a matter of right, related to past participation in the productive *64 processes of the country." Final Report of the Advisory Council on Social Security 1 (1938). It is true that social security benefits are not necessarily related directly to tax contributions, since the OASDI system is structured to provide benefits in part according to presumed need.[14] For this reason, Flemming held that the position of a covered employee "cannot be soundly analogized to that of the holder of an annuity, whose right to benefits is bottomed on his contractual premium payments." But the fact remains that the statutory right to benefits is directly related to years worked and amount earned by a covered employee,[1] and not to the need of the beneficiaries directly. Since OASDI benefits do depend significantly upon the participation in the work force of a covered employee, and since only covered employees and not others are required to pay taxes toward the system, benefits must be distributed according to classifications which do not without sufficient justification differentiate among covered employees solely on the basis of sex. *648 B Appellant seeks to characterize the classification here as one reasonably designed to compensate women beneficiaries as a group for the economic difficulties which still confront women who seek to support themselves and their families. The Court held in 416 U. S., at 3, that a statute "reasonably designed to further the state policy of cushioning the financial impact of spousal loss upon the sex for which that loss imposes a disproportionately heavy burden" can survive an equal protection attack. See also But the mere recitation of a benign, compensatory purpose is not an automatic shield which protects against any inquiry into the actual purposes underlying a statutory scheme.[16] Here, it is apparent both from the statutory scheme itself and from the legislative history of 402 (g) that Congress' purpose in providing benefits to young widows with children was not to provide an income to women who were, because of economic discrimination, unable to provide for themselves. Rather, 402 (g), linked as it is directly to responsibility for minor children, was intended to permit women to elect not to work and to devote themselves to the care of children. Since this purpose in no way is premised upon any special disadvantages of women, it cannot serve to justify a gender-based distinction which diminishes the protection afforded to women who do work. That the purpose behind 402 (g) is to provide children *649 deprived of one parent with the opportunity for the personal attention of the other could not be more clear in the legislative history. The Advisory Council on Social Security, which developed the 1939 amendments, said explicitly that "[s]uch payments [under 402 (g)] are intended as supplements to the orphans' benefits with the purpose of enabling the widow to remain at home and care for the children." Final Report of the Advisory Council on Social Security 31 (1938). (Emphasis supplied.) In 191, a new Advisory Council, considering amendments to eliminate the various gender-based distinctions in the OASDI structure, reiterated this understanding: "Present law provides benefits for the mother of young children if she chooses to stay home and care for the children instead of working. In the Council's judgment, it is desirable to allow a woman who is left with the care of the children the choice of whether to stay at home to care for the children or to work." 191 Advisory Council on Social Security, Reports on the Old-Age, Survivors, and Disability Insurance and Medicare Programs 30 (hereinafter 191 Reports). (Emphasis supplied.) Indeed, consideration was given in 1939 to extending benefits to all widows regardless of whether or not there were minor children. The proposal was rejected, apparently because it was felt that young widows without children can be expected to work, while middle-aged widows "are likely to have more savings than younger widows and many of them have children who are grown and able to help them." Report of the Social Security Board, H. R. Doc. No. 110, 6th Cong., 1st Sess., -8 (1939). See also Final Report of the Advisory Council on Social Security 31 (1938); on the Social Security Act Amendments of 1939 before the House Committee on Ways and Means, 6th Cong., 1st Sess., 61, 121, 2169-210; H. R. Rep. No. 28, 6th Cong., 1st Sess., 36-3 *60 (1939). Thus, Congress decided not to provide benefits to all widows even though it was recognized that some of them would have serious problems in the job market. Instead, it provided benefits only to those women who had responsibility for minor children, because it believed that they should not be required to work. The whole structure of survivors' benefits conforms to this articulated purpose. Widows without minor children obtain no benefits on the basis of their husband's earnings until they reach age 60 or, in certain instances of disability, age 0. 42 U.S. C. 402 (e) (1) and (). Further, benefits under 402 (g) cease when all children of a beneficiary are no longer eligible for children's benefits.[1] If Congress were concerned with providing women with benefits because of economic discrimination, it would be entirely irrational to except those women who had spent many years at home rearing children, since those women are most likely to be without the skills required to succeed in the job market. See Walker, Sex Discrimination in Government Benefit Programs, 23 Hastings L. J. 2, 28-29 (191); ; Report of the Committee on Social Insurance and Taxes, The President's Commission on the Status of Women 31-32 (1963). Similarly, the Act now provides benefits to a surviving *61 divorced wife who is the parent of a covered employee's child, regardless of how long she was married to the deceased or of whether she or the child was dependent upon the employee for support. 402 (g), 416 (d) (3). Yet, a divorced wife who is not the mother of a child entitled to children's benefits is eligible for benefits only if she meets other eligibility requirements and was married to the covered employee for 20 years. 402 (b) and (e), 416 (d).[18] Once again, this distinction among women is explicable only because Congress was not concerned in 402 (g) with the employment problems of women generally but with the principle that children of covered employees are entitled to the personal attention of the surviving parent if that parent chooses not to work. Given the purpose of enabling the surviving parent to remain at home to care for a child, the gender-based distinction of 402 (g) is entirely irrational. The classification discriminates among surviving children solely on the basis of the sex of the surviving parent. Even in the typical family hypothesized by the Act, in which the husband is supporting the family and the mother is caring for the children, this result makes no sense. The fact *62 that a man is working while there is a wife at home does not mean that he would, or should be required to, continue to work if his wife dies. It is no less important for a child to be cared for by its sole surviving parent when that parent is male rather than female. And a father, no less than a mother, has a constitutionally protected right to the "companionship, care, custody, and management" of "the children he has sired and raised, [which] undeniably warrants deference and, absent a powerful countervailing interest, protection." 40 U.S. 64, 61 Further, to the extent that women who work when they have sole responsibility for children encounter special problems, it would seem that men with sole responsibility for children will encounter the same child-care related problems.[19] Stephen Wiesenfeld, for example, found that providing adequate care for his infant son impeded his ability to work, see n. Finally, to the extent that Congress legislated on the presumption that women as a group would choose to forgo work to care for children while men would not,[20]*63 the statutory structure, independent of the gender-based classification, would deny or reduce benefits to those men who conform to the presumed norm and are not hampered by their child-care responsibilities. Benefits under 402 (g) decrease with increased earnings, see, According to appellant, "the bulk of male workers would receive no benefits in any event," Brief for Appellant 1 n. 11, because they earn too much. Thus, the gender-based distinction is gratuitous; without it, the statutory scheme would only provide benefits to those men who are in fact similarly situated to the women the statute aids. Since the gender-based classification of 402 (g) cannot be explained as an attempt to provide for the special problems of women, it is indistinguishable from the classification held invalid in Frontiero. Like the statutes there, "[b]y providing dissimilar treatment for men and women who are similarly situated, the challenged section violates the [Due Process] Clause." 404 U.S. 1, (191). Affirmed. MR. JUSTICE DOUGLAS took no part in the consideration or decision of this case. *64 MR. |
Subsets and Splits